R V MV Marathassa - Reasons For Judgment

Citation: ☼ R. v.
MV Marathassa
2019 BCPC 13
Date: ☼20190207
File No: 233913-1
Registry: Vancouver
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

Criminal Court
REGINA
v.
MV MARATHASSA
REASONS FOR JUDGMENT

OF THE
HONOURABLE JUDGE K. DENHOFF
Counsel for the Crown: J. Lawn and A. Switzer

Counsel for the Defendant: P. Swanson, D. Jones, and M. Rowan
Place of Hearing: Vancouver, B.C.
Dates of Hearing: February 26, 27, 28, March 1, 7, 8, 12, 13, 14, 15, 20,
21, 22, 23, 26, 27, 28, 29, April 3, 4, 5, 6, 11, 12, 16, 20,
25, May 7, 8, 10, 14, 16, 17, June 6, August 13, 16, 22,
23, 24, September 11, 12, 18, 25, 26, 27, 28, October 1,
2, 3, 4, 5, 9, 10, 11, 12, 18, 19, December 6, 7, 10, 12,
14, and 17, 2018
Date of Judgment: February 7, 2019
R. v. MV Marathassa Page 1
[1] On April 8, 2015, the Motor Vessel Marathassa (“the Marathassa”) was anchored
in English Bay. It was observed by employees of the Port Metro Vancouver (“Port
Vancouver”) and the Canadian Coast Guard to have a ring of fuel oil around its hull.
Transport Canada conducted an investigation which determined that approximately
2700 litres of fuel oil had been deposited in the waters around English Bay. Although
most of the fuel oil was recovered or dissipated within 48 hours, there was an
environmental impact on the shores of English Bay, and four migratory birds were
smeared with patches of oil.
[2] The Marathassa is charged with an environmental offence of discharging a
pollutant into the waters surrounding English Bay on April 8, 2015, and with a further
environmental offence of discharging a substance that was harmful to migratory birds.
[3] The Marathassa is also charged with two offences of failing to implement its
shipboard pollution emergency plan by failing to take samples of the fuel oil in the water,
and by failing to assist with the containment of the discharged fuel oil.
[4] Alassia Newships Management Inc. (“Alassia”), the company which operated the
vessel and employed the crew, was also charged with various offences. However, at
the time that the trial commenced, that foreign company had not attorned to the
jurisdiction of this Court and so the trial proceeded only against the Marathassa.
[5] The parties agree that all of the charges against the Marathassa are strict liability
offences and the Crown need only prove the acts which are the subject of the offences.
In terms of the allegation that the Marathassa discharged fuel oil into English Bay, the
Crown must only prove that the fuel oil was discharged by the Marathassa, not that
the Marathassa intended to discharge the fuel oil or even knew that it was discharging
the fuel oil.
[6] If the Crown proves beyond a reasonable doubt that the Marathassa discharged
fuel oil into English Bay, then the Marathassa may raise a defence, as it has in this
case, of due diligence. To succeed with a defence of due diligence, the Marathassa
must prove on a balance of probabilities that either it was mistaken as to facts, which
rendered its actions innocent, or it took all reasonable steps to ensure that fuel oil was
not discharged.
Conclusion
[7] The Marathassa did discharge a pollutant into the waters of English Bay which
was harmful to migratory birds.
[8] The discharge was caused by two shipbuilder defects on the brand new vessel,
which had only been in operation for three weeks. The vessel had been built in Japan,
a country with a worldwide reputation for quality shipbuilding. Lloyd’s Register oversaw
the shipbuilding, and audited an ocean trial run with the crew in operation of the vessel.
[9] The two defects were not foreseeable to the owner or crew of the Marathassa
and were only discovered after the leak of fuel oil was traced back to the area of the
defects. Those defects were also not foreseeable to the external auditors of the
shipbuilding or to two experienced Transport Canada Inspectors, who spent an entire
day inspecting the vessel and searching for the source of the fuel oil discharge.
[10] The Marathassa also had extensive pollution prevention systems in place and
had conducted a comprehensive crew selection and training program aimed at safety
and pollution prevention, including fuel oil discharges. The training of the crew
continued onboard the ship and the crew performed training drills and equipment
inspections regularly throughout the voyage. As such, the Marathassa has proven a
defence of due diligence.
[11] In terms of the charges that the Marathassa failed to implement its shipboard
pollution emergency plan, the Marathassa did implement the plan by taking samples of
the fuel oil in the water and by assisting with the containment of the fuel oil.
[12] As a result, the Marathassa is acquitted of all charges.
The Background
[13] The Marathassa was a newly built bulk carrier which had only been in operation
for three weeks prior to the discovery of fuel oil near its hull in English Bay. The vessel
was built in Japan and had travelled to Busan, Korea, where it took on the majority of
the fuel oil required for its upcoming journey. The next stop for the Marathassa was
Vancouver, where it was scheduled to pick up a cargo of grain for transportation
overseas.
[14] Near Victoria, on April 4, 2015, the Marathassa picked up a marine pilot,
Mr. Carey, who piloted the vessel through the challenging waterways between Victoria
and Vancouver to Anchorage B in Vancouver Harbour. There is a compulsory pilotage
area from Victoria to Vancouver which requires certain vessels to retain a marine pilot to
navigate through local waters, as those waters can be particularly challenging and local
knowledge is imperative. The marine pilot actually takes over the navigation of the
vessel from the Captain and directs the crew as the pilot deems necessary. Mr. Carey
was on the vessel for over seven and a half hours.
[15] A second marine pilot, Mr. Ritchie, navigated the vessel from Anchorage B to
Cascadia Terminal in Vancouver Harbour on April 6.
[16] Mr. Carey again navigated the vessel on April 7, for two hours, from Cascadia
Terminal to Anchorage 12 in English Bay.
[17] Both pilots relied on the crew to perform challenging duties and neither pilots
observed anything of concern about the operation of the vessel or the performance of
the crew.
[18] On April 8, at approximately 4:30 pm, the captain of the Marathassa
(“the Captain”) received a telephone call from the vessel’s agent, who advised that
Transport Canada had received a report of fuel oil in the water near where
the Marathassa was anchored.
The Discharge of Fuel Oil into English Bay
[19] The Marathassa admits that the Crown has proven beyond a reasonable doubt
that on or about April 8, 2015, fuel oil was discharged into English Bay contrary to s.187
of the Canada Shipping Act, 2001, S.C. 2001, c 26, and that the fuel oil was harmful to
migratory birds. However, the Marathassa argues that the Crown has not proven
beyond a reasonable doubt that the fuel oil came from the Marathassa. No one testified
to seeing it discharged and the Marathassa says that the circumstantial evidence the
Crown relies upon is not sufficient to prove the offence.

The Legal Test for the Sufficiency of Circumstantial Evidence
[20] The Crown has the onus of proving the offences beyond a reasonable doubt. In
this case, there is no direct evidence that anyone saw the Marathassa discharge fuel oil.
As a result, the alleged offence is based on circumstantial evidence and the Court is
asked to draw certain inferences from the evidence.
[21] It is essential when considering circumstantial evidence that the Court resist the
temptation to “fill in the blanks” in the evidence to support the inference that the Crown
is urging. An inference of guilt must be the only reasonable inference that can be drawn
from the evidence. Reasonable alternatives must also be considered, including ones
that do not arise from the proven facts. If there are reasonable inferences other than
that the fuel oil was discharged by the Marathassa, then the Crown has not proven the
charge beyond a reasonable doubt. See R. v. Villaroman, [2016] 1000, 1 S.C.R.,
paras 30 to 35.
Evidence of the Marathassa Discharging Fuel Oil
[22] The Crown primarily relies on observations made of fuel oil around
the Marathassa, and on statements by the Captain and the Chief Engineer of
the Marathassa.
i) Observations of Fuel Oil in English Bay
[23] Several people testified to seeing oil around the Marathassa on April 8 and
April 9, 2015.
[24] Mr. James, who was a harbour patrol officer with the Port Vancouver, was
dispatched to English Bay at around 4:30 pm on April 8, 2015. He saw significant

quantities of oil in the vicinity of the Marathassa, which grew in quantity as he got closer
to the vessel. As he boarded the vessel that evening, he smelled a strong odor of fuel
oil similar to the odor he smelled in the vicinity of the fuel oil in the water, and he could
see fuel oil all around the vessel.
[25] Mr. Brady, who was with the Canadian Coast Guard (“Coast Guard”), saw fuel oil
in the water around the Marathassa on the evening of April 8, which became larger in
quantity and concentration as he got closer to the vessel. At the same time, he saw a
bathtub ring of fuel oil around the Marathassa that was concentrated on the port quarter,
which was the back left side of the vessel.
[26] At 5:30 pm on April 8, the crew of the Marathassa noted in the vessel Rough Log
Book that the Marathassa had fuel oil all around it.
[27] Mr. Burt, who was with Western Canada Marine Recovery Corporation (“Western
Canada Marine”), which recovered much of the fuel oil around the Marathassa, testified
that there was a bathtub ring of fuel oil around the Marathassa when he approached it
on the morning of April 9. Mr. Burt also testified that it appeared that the Marathassa
had fuel oil either attached to its hull or coming out of its ballast vents.
[28] In the late hours of April 8, or early hours of April 9, Mr. Burt and another
employee of Western Canada Marine placed a boom all around the Marathassa to
contain the fuel oil near the Marathassa for clean up. According to Mr. Burt, once
the Marathassa was boomed, the fuel oil inside of the boom was growing, but it was not
growing outside of the boom.

[29] Kim Pearce and Robert Whittaker are both employed with the Marine Aerial
Surveillance Team with Environment Canada. They conducted aerial surveillance of
English Bay after the report of fuel oil. Mr. Whittaker testified that he saw fuel oil around
the Marathassa on the morning of April 9, and Ms. Pearce also testified that she saw
fuel oil around the Marathassa on the morning of April 9.
[30] Mr. Courschesne was a marine diver retained by the Marathassa to search for
any signs of a fuel oil leak from the vessel. Mr. Courschesne initially testified that on
April 9, he found quite a bit of fuel oil coming out of an overboard discharge pipe on the
back left side of the vessel. He clarified in cross-examination that what he actually saw
were fuel oil stains on the inside of the discharge pipe, but he could not say definitively
that fuel oil came out of the pipe. The fuel oil stains extended far enough inside of the
discharge pipe that it did not seem to him that the fuel oil splashed into the discharge
pipe from outside of the vessel, but he could not say for certain.
[31] It should be noted that the discharge pipe, in which Mr. Courschesne observed
traces of fuel oil, was not intended for the overboard discharge of fuel oil. Rather, it was
used to discharge non-toxic fluids overboard, such as water used to rinse parts of the
vessel, or water placed in various compartments to balance the vessel when it was not
fully loaded with cargo.
[32] Once Mr. Courschesne reported to the Captain and Chief Engineer that he found
fuel oil inside one of the overboard discharge pipes, the Chief Engineer conducted a
further investigation of the vessel. The piping from the overboard discharge pipe led
back to a pipe passage compartment. That compartment is a confined space at the
bottom of the vessel where piping from various areas of the vessel passes through.
[33] The confined area can only be accessed through a manhole on one of the lower
floors of the engine room. The manhole cover is bolted to the vessel floor and is not
routinely opened, since it can be deadly to enter a confined area before ventilating it for
a period of time. In order to enter the area, a written form has to be completed, the
Chief Officer has to check the air quality to ensure the area has been properly
ventilated, and then the Captain has to sign the final approval for entry.
[34] The discovery of the fuel oil in the overboard discharge pipe prompted the Chief
Engineer to investigate the pipe passage compartment to attempt to trace the source of
the fuel oil in the discharge pipe. When the Chief Engineer entered the pipe passage
compartment, after it was adequately ventilated, he found a significant amount of fuel oil
in the compartment.
ii) Statements of the Captain and the Chief Engineer
[35] According to statements made by the Chief Engineer and the Captain to
Transport Canada, the observation of fuel oil in the pipe passage was a complete
surprise. The area is a contained area where there should be no fluids. In addition, the
piping system from the pipe passage to the overboard discharge pipe was intercepted
by a valve, which was closed at the time. As a result, fuel oil should not have been able
to travel from the pipe passage compartment to the overboard discharge pipe.
[36] The statements by the Chief Engineer and the Captain to Transport Canada
about the reasons for the discharge of the fuel oil were entered into evidence with the
consent of the Marathassa at trial.

[37] According to both the Chief Engineer and the Captain, there were three causes
of the discharge of the fuel oil from the Marathassa. The first cause was that fuel oil
leaked from one of the fuel oil tanks into the pipe passage compartment through holes
in a fuel tank created by improperly installed fuel alarm sensors. Although not required
by regulation, the Marathassa opted to have fuel alarm sensors installed in all of the fuel
tanks as an additional pollution precaution. To install the alarms, a hole is created in
the wall of the fuel tank and a floating sensor is inserted through the hole into the inside
of the tank. If the fuel in the tank rises to the level of the floating sensor, then the
sensor will activate an alarm.
[38] Fuel alarm sensors are used during the fueling process to ensure that tanks are
not overfilled, which could result in spillage. For that reason, they are also referred to
as high level alarms, as they measure the high level of the fuel oil in the tank.
[39] The housings to the fuel alarm sensors are bolted to the outside of the fuel tank
through four additional holes once the floating sensor is inserted inside of the tank. In
total, there are five holes in a fuel oil tank for each of the sensors. There is one hole
through which the floating sensor is placed, and four holes through which bolts are
inserted to secure the housing of the sensor to the fuel tank. Once the housing is
properly bolted to the fuel tank, there is an airtight seal created for all five holes.
[40] When the Chief Engineer investigated the pipe passage compartment, he found
three fuel alarm sensors not properly bolted to the side of the fuel tank. One of the
sensors and its housing were hanging on the inside of the pipe passage compartment,
leaving five open holes in the fuel oil tank where the sensor and housing should have
been attached. Fuel oil could be observed streaming into the pipe passage from those
five open holes. The housings on the other two sensors were still attached to the fuel
tank, but the bolts were either loose or missing and the housings were out of position.
Fuel oil could be seen around the housings of those two sensors and seeping out from
the fuel oil tank. A number of loose bolts were found on the floor of the pipe passage
compartment.
[41] According to both the Chief Engineer and the Captain, the escape of fuel oil into
the pipe passage compartment would not have, by itself, led to a discharge of fuel oil
from the vessel. The pipe passage compartment is a contained area and as long as the
valve for the piping from the pipe passage is closed, any fluid in the pipe passage
compartment cannot escape.
[42] When the Chief Engineer investigated the pipe passage and found that fuel oil
had seeped in from one of the fuel tanks, he also investigated the valve which closed off
the piping in the pipe passage compartment from the piping to the overboard discharge
pipe. When the valve was disassembled, it was found to have a foreign body in it which
prevented the valve from making a complete seal. Fuel oil was also found inside of the
valve.
[43] As the Captain explained to Transport Canada, a critical event occurred on the
morning of April 8, 2015, the day that fuel oil was first observed around the Marathassa.
On that day, the crew had washed out one of the cargo holds in preparation to accept a
load of grain into the hold. According to both the Chief Engineer and the Captain, the
gap in the seal of the valve between the pipe passage compartment and the overboard
discharge pipe allowed fuel oil to be suctioned from the pipe passage into the overboard
discharge pipe. This occurred when water was being suctioned from another area for
the cargo cleaning exercise.
[44] The Marathassa argues that the statements by the Chief Engineer and Captain
should be discounted, as they were relying on the report of the diver that there was fuel
oil in the overboard discharge pipe and were only providing possible explanations as to
how the fuel oil may have got there. Although it is correct that neither the Chief
Engineer nor the Captain personally observed the discharge of fuel oil into English Bay,
they are both very experienced mariners who investigated the source of the pollution.
Both the Captain and the Chief Engineer were familiar with the piping arrangement on
the Marathassa, and the Chief Engineer provided a piping diagram to Transport Canada
on which he demonstrated how the fuel oil was suctioned from the pipe passage
compartment through the faulty valve. The explanations of the Captain and Chief
Engineer are very compelling, and the physical evidence accords with their
explanations.
[45] The Marathassa also argues that neither the Chief Engineer nor the Captain
testified that fuel oil from the Marathassa was discharged into the water. Rather, they
only explained how the fuel oil may have got into the overboard discharge pipe.
[46] It is significant, however, that the Chief Engineer was asked by the Transport
Canada Inspector, “Do you know what happen (sic), why the spill?” He was not asked
whether he knew how the fuel oil got into the overboard discharge pipe. The Chief
Engineer later stated, “Now to --to start to have pollution we have three times, three
case (sic). The first we have leakage from the sensors, high alarm.” It is abundantly
apparent that the Chief Engineer was providing an explanation of the spill of fuel oil, and
the pollution of the water by fuel oil.
[47] Similarly with the Captain, who stated, “…and this is the first time that I imagine
the spillage was coming out from this -- light spillage coming out from my ship.”
The Captain further stated that when they learned that there was fuel oil in the
overboard discharge pipe, the engineers traced the piping back to the pipe passage
compartment, which was then opened and the sensors were found not properly bolted
to one of the fuel tanks.
[48] According to the Captain, that situation, combined with the faulty valve, caused
the discharge of fuel oil overboard. In particular, the Captain stated, “Overboard
leakage because of the valve, the local valve did not touch the base, did not closed (sic)
properly because of some foreign body in between.” Clearly, the Captain was referring
to the discharge of fuel oil into the water when he referred to the “spillage coming from
my ship” and the “overboard leakage” being caused by the faulty valve.
[49] The totality of the evidence is very compelling that on or about April 8, 2015,
the Marathassa discharged fuel oil into the waters of English Bay. In particular:
 Several people observed a ring of fuel oil around the hull of

the Marathassa and not around other vessels in the vicinity;
 When the Marathassa was boomed, the fuel oil grew inside the boom;
 Fuel oil was observed coming out of the left back side of the vessel, and
the overboard discharge pipe on the left back side of the vessel had traces
of fuel oil in it;
 The Chief Engineer traced the piping from the overboard discharge pipe to
the pipe passage compartment which contained spilled fuel oil;
 Three alarm sensors were dislodged from an oil tank and fuel oil had
spilled into the pipe passage compartment through the openings created
by the dislodged sensors;
 The valve between the pipe passage compartment and the piping leading
to the discharge pipe was partially open by debris and had fuel oil inside it;
and
 The Chief Engineer and the Captain both stated that when one of the
cargo holds was rinsed with water and the water was discharged
overboard, the fuel oil in the pipe passage compartment was suctioned
through the faulty valve into the piping to the overboard discharge pipe,
causing the spill. The Chief Engineer demonstrated the phenomenon on a
diagram of the ship piping system.
[50] It is a reasonable inference that fuel oil was discharged by the Marathassa into
the waters of English Bay during the cargo washing exercise on the morning of
April 8, 2015.
[51] The Marathassa submits that there are reasonable alternatives, such as that fuel
oil was discharged by one of the many other vessels in the area. Alternatively, that the
fuel oil was discharged by another vessel not in the vicinity and the tide carried the fuel
oil towards the Marathassa. In either case, the Marathassa argues that the fuel oil may
have simply floated into the overboard discharge pipe of the Marathassa. In support of
the alternative theories, the Marathassa relies on the evidence of witnesses that
streams of fuel oil were seen to the west of the Marathassa in the early evening of
April 8, flowing easterly towards the Marathassa.
[52] In terms of the theory that another vessel in the vicinity discharged the fuel oil,
Mr. James testified that beginning at 6:00 pm on April 8, he checked “all of the vessels"
in the immediate vicinity of the Marathassa and none had substantial signs of fuel oil
around them or in the immediate area. At the same time, the Marathassa had a
concentration of fuel oil around it.
[53] Mr. Brady and Mr. Burt both testified that although they checked the other
vessels in the vicinity, the Marathassa was the only vessel with a black oil ring around
the hull.
[54] Mr. Whitaker testified that when they conduct aerial surveillance they do not just
accept a report that a certain ship is the source of a discharge. Instead, they check all
other vessels in the vicinity. On April 9, the fuel oil was only around the Marathassa and
not any of the other vessels in the vicinity.
[55] It is not a reasonable inference that fuel oil was discharged by another vessel in
the vicinity.
[56] It is also not a reasonable inference that the fuel oil was discharged by a vessel
not in the vicinity, and the tide washed the fuel oil to the Marathassa. If that were the
case, the other vessels in the vicinity of the Marathassa would also have fuel oil around
them.
[57] In terms of some of the fuel oil being spotted west of the Marathassa flowing
easterly, the evidence was that the tide flowed to the west of the Marathassa in the
morning of April 8, and then changed to flow east towards the Marathassa in the late
afternoon. Therefore, if the Marathassa discharged fuel oil during the hold washing
exercise on the morning of April 8, some of the fuel oil would have been pushed
westerly in the morning and then pushed back easterly in the late afternoon. Despite
the tides, the Marathassa continued to have a heavy concentration of fuel oil around its
hull throughout all of the tidal movements, while the other vessels in the vicinity did not.
[58] All alternative theories are speculative and do not reasonably support an
inference other than that the Marathassa discharged fuel oil into the waters of
English Bay. They also do not explain the presence of the fuel oil in the pipe passage
compartment or inside the defective valve, or in the overboard discharge pipe.
[59] The only reasonable inference is that the Marathassa discharged fuel oil into the
waters of English Bay on April 8, 2015, while also discharging cleaning water from a
cargo hold. The Crown has proven that charge beyond a reasonable doubt.
[60] By admission of the Marathassa, the Crown has also proven beyond a
reasonable doubt that the discharge of fuel oil by the Marathassa was harmful to
migratory birds.
Due Diligence
[61] The Defence of due diligence is often available by statute. In this case, s. 254 of
the Canada Shipping Act, 2001, provides that:
s. 254. (1) No person may be found guilty of an offence under this Act if
the person establishes that they exercised due diligence to prevent its
commission.
(2) No vessel may be found guilty of an offence under this Act if the
person who committed the act or omission that constitutes the offence
establishes that they exercised due diligence to prevent its commission.
[62] Section 13.17 of the Migratory Birds Convention Act, S.C. 1994, c. 22, similarly
provides a defence of due diligence.

[63] In addition, all strict liability offences are afforded a defence of due diligence at
common law. The defendant will not be found guilty of the offence if the defendant can
establish that it was operating under a mistake of fact or took all reasonable steps to
prevent the offending conduct.
[64] The onus for establishing on a balance of probabilities, that there was a mistake
of fact or that all reasonable steps were taken, is fully on the defendant. The greater the
potential harm, the higher the burden. In cases of pollution, the burden is considered to
be very high. See R. v. Gonder, [1981] Y.J. No. 16, 1981 Carswell Yukon 8 (YKTC),
and R. v. Gulf of Georgia Towing Co. Ltd., [1979] 3 W.W.R. 84, 10 B.C.L.R. 134
(BCCA).
[65] In advancing a due diligence defence, the Marathassa was unable to rely on the
crew of the Marathassa to testify at trial. The crew apparently refused to testify because
the Crown indicated that it would take the position that the employer, Alassia, was
attorning to the jurisdiction of the Court. Since the crew members were located in
foreign countries, the Marathassa could not subpoena the witnesses to trial.
[66] The fact that the Marathassa was unable to summons any of the crew to trial
does not in any way reduce its obligation to prove on a balance of probabilities that it
exercised due diligence.
[67] The evidence of due diligence presented by the Marathassa consisted of the
formal statements of the Captain, Chief Engineer, 2nd Officer and 3rd Officer, which the
Crown tendered into evidence, along with various documents primarily tendered by the
Crown. In addition, three expert witnesses testified as to industry standards and
practices.
[68] Mr. Stenvik testified for the Marathassa. He was qualified as an expert in the
shipping industry. In particular, practices regarding shipping management, including
procedures regarding building, delivery, crewing and overseeing operations of bulk
carriers engaged in international trade.
[69] Mr. Behramfram also testified for the Marathassa. He was qualified as an expert
in the history of classification societies, and standards and procedures of classification
societies regarding ships engaged in international trade. His expertise included class
involvement during building, certification and delivery, and integrated management
system approval, implementation and compliance.
[70] Captain Nelson was called by the Crown as a rebuttal expert on the defence of
due diligence. He was qualified as an expert in the characteristics, navigation and safe
operation of coastal and ocean going cargo vessels, including bulk carriers. He was
also qualified in the area of the training requirements, duties, and responsibilities of
captains, officers, and crew in regards to such vessels and those onboard, except for
the training requirements of the engineering crew.
[71] Captain Nelson was further qualified as an expert on the process, procedure, and
best practices regarding joining a vessel, and crew familiarization both with respect to
being a first crew and a replacement crew.
[72] All of the experts impressed me as being very knowledgeable in their areas of
expertise. None of the experts were significantly challenged on cross-examination
although each of them acknowledged areas in which they had limited or no recent
experience. The weight of their evidence in those areas must be assessed accordingly.
Credibility
[73] Overall, I found all of the witnesses to be credible and reliable, with the exception
of Inspector Waheed and Captain Yeung, whose testimony I extensively reviewed in my
Reasons dated April 20, 2018.
[74] There were occasions when witnesses clarified their evidence or made
concessions on cross-examination. In those cases, their initial statements are made
less reliable by the clarifications and concessions.
[75] The Crown has argued that the Captain’s credibility should be questioned since
he stated that he only saw streams of oil from the west, as opposed to a ring of oil
around the hull of the vessel, as observed by the employees of Port Vancouver and the
Coast Guard. However, those observations by Port Vancouver and the Coast Guard
were made after 9 pm on April 8, and during the day on April 9. The Captain’s
observations were made after he received a telephone call from the ship’s agent at
4:30 pm. He took photos of the observations he made, and those photos were
reviewed by Port Vancouver. Port Vancouver verified that the photographs showed
patches of oil west of the vessel. Although the Rough Log Book recorded that oil was
surrounding the vessel at 5:30 pm, that observation is not necessarily inconsistent with
the observations made at 4:30 pm by the Captain.
[76] The Captain also stated that when a Barge arrived to deliver oil, neither he nor
the Barge personnel thought the fuel oil was coming from the Marathassa. Similarly,
none of the members of Port Vancouver or the Coast Guard knew where the fuel oil
was coming from until they formed an opinion at 11:30 pm that the fuel oil was coming
from the Marathassa.
[77] The Crown also says that the statements of the Captain, Chief Engineer, 2nd
Officer and 3rd Officer should be carefully scrutinized as the crew members had an
interest in protecting themselves and their employer from any wrongdoing. The
statements were taken by a member of Transport Canada who was a former police
officer. The statements were tightly controlled by the interviewer, and often when the
witnesses were providing answers the interviewer did not appear to prefer, the
witnesses were abruptly cut off by the interviewer.
[78] Overall, the statements accorded with the documentary evidence and were not
inconsistent with the other evidence in any significant way. The statements also
differed in enough ways that it did not appear that the crew had colluded in the
information they provided to Transport Canada. There is simply no reason to discount
the statements, which were tendered by the Crown. I have taken into account that none
of the participants of the statements, including the interviewer, spoke English as a first
language and so there were often misunderstandings between the parties, which I have
noted when necessary.
The Legal Test for Due Diligence
[79] The seminal case on the availability of a due diligence defence is R. v. Sault Ste.
Marie, [1978] 2 S.C.R. 1299, where the Court noted at para 60:
[60] Offences in which there is no necessity for the prosecution to prove

the existence of mens rea; the doing of the prohibited act prima facie
imports the offence, leaving it open to the accused to avoid liability by
proving that he took all reasonable care. This involves consideration of

what a reasonable man would have done in the circumstances. The
defence will be available if the accused reasonably believed in a mistaken
set of facts which, if true, would render the act or omission innocent, or if
he took all reasonable steps to avoid the particular event.
[80] The Marathassa argues that it reasonably mistakenly believed that the vessel
was built to international shipping standards and was free of any defects which would
cause a discharge of fuel oil. In support of that argument, the Marathassa points to the
extensive regulatory requirements and the external auditing of the shipbuilding process.
[81] The Marathassa further submits that it took all reasonable steps to avoid the
discharge of fuel oil.
Registration of the Ship
[82] Ships must be registered in a country, which is then known as the ship’s “flag
state”. The country or flag state undertakes responsibility for certification and inspection
of the ship in accordance with the requirements of international conventions. The
International Maritime Organization has three lists of flag states, which are distinguished
according to the quality of their processes.
[83] The Marathassa was registered with a white flag country, which, according to
Transport Canada, has the highest standards and safety requirements.
Inspection and Certification of the Ship
[84] Flag states typically delegate the responsibility for the inspection and certification
of ships to a registered organization called a classification society. Those classification
societies have the technical expertise to carry out the inspections of ships and crew for
the purpose of issuing statutory certifications.

[85] The classification society chosen by the Marathassa was Lloyd’s Register, which
is based out of the United Kingdom, and is a world leading classification society. It acts
as a registered organization for many flag states including Canada, and is considered
by Transport Canada to be a high ranking classification society with high quality
surveyors.
[86] Lloyd’s Register was responsible for performing verification surveys for the
design, construction, and lifetime maintenance of the Marathassa.
Construction of the Ship
[87] The uncontested evidence from Mr. Stenvik was that Japan is one of the highest
ranking shipbuilding communities in the world. Further, that shipowners pay a premium
to Japanese shipbuilders to receive a higher quality and more consistent quality of
vessel. Also, according to Mr. Stenvik, shipbuilders in Japan have very, very good
quality assurance systems. The Marathassa was built by a shipbuilder in Japan, which
was approved by Lloyd’s Register.
Ship Design
[88] The Marathassa was built to include pollution prevention equipment not required
by any international convention. In particular, the Marathassa was voluntarily built to a
Lloyd’s Register ECO standard, which according to Mr. Behramfram, means that the
ship is a “safer ship from an environmental pollution perspective.” One example, is the
installation of high level alarms in the fuel oil tanks to prevent accidental overflow and
spillage.
International Treaties and Conventions
[89] The International Convention of Safety of Life at Sea (“SOLAS”) is an
international maritime treaty which governs the construction, equipment and operation
of merchant ships, including the Marathassa. SOLAS requires compliance with the
International Safety Management Code (“ISM Code”), which provides an international
standard for the safe operation of ships and for pollution prevention.
[90] The ISM Code requires ships to obtain a Safety Management Certificate. To do
so, the ship must have a safety management system, which must be onboard the ship
for the reference of the crew. The Marathassa’s safety management system was
contained in an Integrated Safety Management Manual (“ISM Manual”). The ISM
Manual is specific to types of ships, in this case bulk carriers.
[91] Once an ISM Manual is created by a shipowner, an internal audit is required in
the shipowner’s office to ensure that the personnel are familiar with the ISM Manual and
are implementing it. Upon completion of the internal audit, an auditor from the flag state
does an external audit in the office of the shipowner. The auditor ensures that the ISM
Manual is in compliance with the ISM Code, that the systems are all in place, that the
personnel are familiar with the systems and that the systems are working. If the ISM
Manual passes the external audit, the flag state issues a Document of Compliance for
six months. Following a further internal audit and external audit, a Document of
Compliance is issued for five years.
[92] In this case, the Document of Compliance had been issued in 2013, before
the Marathassa was built, and it was still valid in 2015. In order to maintain the
Document of Compliance, the shipowner must conduct an internal audit every year that
is shared with the flag state, which then conducts its own external audit to verify that the
system is working. Prior to the Marathassa embarking on its maiden voyage, the safety
management systems and the ISM Manual had been subject to at least two internal and
two external audits.
[93] According to Mr. Behramfram, the ISM Manual on the Marathassa not only
complied with the ISM Code requirements, it included many non-mandatory items
focused on safety and protection of the environment. Mr. Behramfram testified that the
ISM Manual of the Marathassa was one of the more comprehensive safety
management systems that he had encountered.
[94] That opinion was also shared by Mr. Stenvik, who had not previously
encountered an ISM Manual as extensive as the one for the Marathassa. Notably, the
ISM Manual also implemented an Environmental Management System, which was not
required by the ISM Code.
[95] As already noted, the ISM Code requires ships to have a Safety Management
Certificate. In order to obtain an interim Safety Management Certificate,
the Marathassa underwent an external audit by Lloyd’s Register onboard the ship on
March 13, 2015, to ensure that the Captain and ship officers were familiar with the ISM
Manual and had planned arrangements for its implementation. The external audit also
verified that the ISM Manual had been given to the crew of the Marathassa.
[96] According to Inspector Waheed, the auditor has checklists of items to review
during the external audit, as required by the ISM Code. Those lists must be kept
onboard to set out the details of the audit, and they were onboard the Marathassa.
According to Mr. Stenvik, who has been present for many external audits, the auditor
checks the equipment onboard to ensure it is functioning and then puts the crew
through a number of drills and procedures to ensure that the crew is familiar with the
ISM Manual and is properly implementing it.
[97] The flag state issued the Marathassa an interim Safety Management Certificate
following the audit process, certifying that the requirements of the ISM Code had been
met. According to the experts, Inspector Waheed and the Captain of the Marathassa,
interim certificates are issued to new ships for six months, recognizing that it takes time
for a crew to become fully familiar with a new ship.
[98] The Marathassa had numerous other certifications required by international
conventions, including an International Oil Pollution Prevention Certificate and a Bunker
Oil Pollution Damage Certificate. The Marathassa also had a Ship Oil Pollution
Emergency Plan.
[99] The fact that the Marathassa was fully compliant with all statutory requirements
and had appropriate systems in place is some evidence of due diligence, but it does not
establish that the Marathassa took all reasonable steps to avoid the spill. The
familiarization of the crew with those systems and the ongoing monitoring of the crew in
the performance of their duties are also critical.
Recruitment and Training of the Crew
[100] Avior Marine Inc. (“Avior”) was the crewing agent for Alassia, the ship manager of
the Marathassa. Mr. Mes, the managing director of Avior, testified about the crew
selection for the Marathassa and for Alassia in general.

[101] Mr. Mes has been providing crew to Alassia for many years and is familiar with
the systems used by Alassia for selecting and training crew. He impressed me as a
forthright and professional individual who is very knowledgeable about crewing in the
shipping industry, and for Avior in particular. According to Mr. Mes, crewing in the
shipping industry is regulated in various countries, including the Philippines where Avior
operates.
[102] The Philippines is recognized worldwide for crewing ships, providing over
400,000 seafarers internationally. Avior recruits and provides quality training of ship
officers and crew. It manages approximately 850 crew on 80 different vessels and has
a pool of 1500 seafarers overall.
[103] According to Mr. Mes, crewing agents like Avior must be licensed to recruit and
deploy seafarers. The licensing is provided by the Philippine Overseas Employment
Administration Agency (“POEA”), which is an agency of the Philippine Government.
The licence issued to Avior verifies that the recruitment and placement services
provided by Avior comply with the requirements of the Maritime Labour Convention
2006, of the International Labour Organization. Avior is randomly audited by POEA to
ensure compliance.
[104] Avior also receives certification through an audit process from the Philippine
Government verifying that it is complying with the International Convention on the
Standards of Training, Certification and Watchkeeping for Seafarers (STCW).
[105] In addition, Avior was accredited by Lloyd’s Register for the provision of
manpower for ships in accordance with the International Labour Organization’s Maritime
Labour Convention. The accreditation followed a two to three day audit process, and
accreditations are conducted on an annual basis.
[106] Mr. Mes testified that Alassia had a policy of selecting crew who had worked on
other ships managed by Alassia, so that the crew members are familiar with the
standards, systems and the ISM Manual for the ship. In the case of the Marathassa, all
but the 2nd Officer had previously worked on ships managed by Alassia, and so were
familiar with the ship’s safety management systems.
[107] As part of the recruitment process, Avior verifies the certifications of all of the
crew and their sea service. Avior also ensures that the crew members have all of the
required training, and, if not, arranges for extra training. In the case of the Marathassa,
all of the crew had the required certification, training and sea service.
[108] According to Mr. Mes, Alassia is one of the stricter ship managers in terms of
crew selection. Alassia also conducts an audit at least once a year to ensure that its
procedures are being followed by Avior.
Care to Avoid the Particular Event
[109] As the Crown points out, a due diligence defence is only made out with respect
to the care taken to avoid the particular event, and is not based on a more general
standard of care.
[110] In R. v. Imperial Oil Ltd., 2000 BCCA 553, 2000 CarswellBC 2068 (BCCA), the
particular event was the escape of a highly toxic effluent from a storage container.
Imperial had a permit which allowed it to discharge effluents to a certain level of toxicity.
Imperial had expected all toxic substances over that amount would be removed by a
refinery separator. The Court of Appeal agreed with the trial judge that Imperial should
have investigated the properties of the toxin in question to know whether the separator
would be effective in removing it from the refinery’s effluent.
[111] The Court found that there was information available to Imperial on the toxicity of
the substance which Imperial never bothered to investigate. In particular, a Material
Safety Data Sheet produced by the manufacturer had warned that the substance was
toxic to rats and rabbits and warned against letting it get into sewers and waterways.
The Court held that it was not an answer that Imperial generally had a good safety
system and tested more frequently than required.
[112] See also R. v. Island Industrial Chrome Co., 2002 BCPC 97, 2002 CarswellBC
643 (BCPC). In that case, the Court pointed to care that could have been taken to
avoid the particular occurrence of allowing chromium to escape into a waterway. In
particular, it pointed to measures such as written procedures, supervision of employees’
work, an automatic water shut-off and a spill warning alarm.
[113] So, although the Marathassa met and exceeded all regulatory requirements,
which are numerous, it must also demonstrate that it took all reasonable steps to
prevent the particular event of a discharge of fuel oil into English Bay.
Familiarization of the Marathassa Crew
[114] The Captain of the Marathassa had worked for Alassia for five years and had
specific experience with their safety systems. He received training for one week on
some of the technical equipment on the Marathassa before he arrived in Japan. After
he arrived in Japan, he received another three days of technical training. He also

completed a briefing on various topics, including, “Environmental protection related
issues with particular reference to the ISM and other Company environmental
management plans”. The briefing checklist was five and a half pages long and was
signed by a member of management, certifying that the results of the briefing were
satisfactory for each category of the checklist.
[115] Along with the Chief Engineer, the Captain also underwent a three week
orientation on the Marathassa at the shipyard, which included Saturdays and Sundays.
According to the Captain’s statement to Transport Canada, the ISM system for
the Marathassa was well organized and contained everything that was necessary in
order to know about the ship.
[116] The rest of the crew received familiarization on the Marathassa at the shipyard
for a little over two weeks prior to leaving port, including Saturdays and Sundays.
[117] According to Mr. Behramfram and Mr. Stenvik, the industry standard is for
the Captain and senior officers to be on the ship two to three weeks prior to departure
and the rest of the crew 5 to 6 days before departure.
[118] By comparison, the Crown’s expert, Captain Nelson, testified that he had one
and a half days to familiarize himself on a new ship as a 2nd Officer.
[119] The familiarization time for the crew of the Marathassa met and exceeded the
industry standard.
Details of the Familiarization
[120] Following the familiarization at the shipyard and before the crew was permitted to
serve onboard the vessel, the crew had to go through a familiarization briefing with a
superior to confirm their knowledge. In the case of the Captain, the familiarization
checklist was two and a half pages and included an area on Environmental Protection
Procedures. It confirmed the Captain’s knowledge on 35 topics relating to pollution,
including, “Technical and practical information associated with pollution prevention”,
“Recording correct soundings of tanks”, “Ways to minimize leakages in Engine Room”,
“Bilge level alarms” and “Operation, maintenance and repair of pollution prevention
equipment and systems”.
[121] Similar checklists were completed for all of the crew, each with a superior officer.
The checklists were directed at the specific duties of the crew member, but all included
an area on the ISM Manual requirements and other Company management plans on
environmental protection. The checklists noted the period of familiarization, and
whether the crew member had the necessary training and experience to perform their
duties and were signed by the crew member and their superior. The Crown entered all
of the checklists into evidence.
[122] The Crown notes that the 3rd Officer commented in his statement to Transport
Canada that the familiarization training was not enough, in his opinion. The 3rd Officer
was asked by Transport Canada how much familiarization he received in Japan and the
conversation was as follows:
Transport Canada: Fifteen days?

3rd Officer: Yeah
Transport Canada: And what was the purpose of you staying in
Japan?
3rd Officer: Yes, for familiarization of this vessel.
Transport Canada: Okay. Was that enough?
3rd Officer: What do you mean that’s enough?
Transport Canada: Is it enough time to get familiarized with the

vessel?
3rd Officer: No, it’s--I cannot--for me, it’s my opinion not--
enough.
Transport Canada: Not enough?
3rd Officer: (Chuckles)
Transport Canada: Okay. And --how much more time would you
estimate that you would need?
3rd Officer: I don’t know, depends on the--what’s happening
onboard.
[123] The 3rd Officer seems to be echoing the views of the Captain, Inspector
Waheed, and the experts, who all noted that the Marathassa was a new ship and the
crew would need time to become fully familiar with it. That accords with the rationale for
issuing a six month Safety Management Certificate for new ships, which is done in order
for the crew to become familiar with the ship, at which point the crew undergoes another
external audit.
[124] It is important to note that the 3rd Officer was asked how long it would take for
him to be familiar with the vessel, not his duties. When the 3rd Officer was asked to
review his duties on the Bridge, he was able to explain them. The Crown notes that the
3rd Officer stated that there were guides numbered N02 to N018 that contained the lists
of duties, and that it was too much for him to remember.
[125] On that basis, the Crown argues that the 3rd Officer must not have known his
duties as he stated that he could not remember them. However, it seems apparent that
the 3rd Officer was simply stating that there were too many duties in the 17 guides for
him to remember and cite on the spot.
[126] It is significant that when Transport Canada questioned the 3rd Officer about
specific duties, he was able to describe how he performed those duties, including
bunkering, responding to alarms and activities on the Bridge, or he indicated which
manuals or guides he would follow when performing those duties. For example, he
pointed to the rules in the Log Book to be followed by the crew during bunkering.
Similarly, he knew he should follow the list of duties in the N02 to N018 Guides, when
performing his duties on the Bridge.
[127] Although the Crown suggests that there is no evidence that the crew actually
completed the familiarization training or completed the checklists, the Crown tendered
the checklists for the truth of their contents and Inspector Waheed outlined the process
that Transport Canada accepted had been followed.
[128] In addition, the 3rd Officer confirmed that he had gone through the familiarization
and had filled in the checklist form. The 2nd Officer confirmed that the Chief Mate, 3rd
Officer and he had all received familiarization in the areas with which they needed to be
familiar.
[129] Most importantly, the Captain confirmed that all of the crew received their “entire”
familiarization, which covered all of the equipment onboard. The Captain recited
examples of the areas of familiarization received by individual crew members. He also
stated that following the familiarization of the crew, he was confident of the crew’s
knowledge.
[130] The Captain further confirmed that he had personally received familiarization
training on all of the procedures and manuals made available by the Marathassa to
operate the vessel.

Familiarization Onboard the Marathassa
[131] Although it was prudent for the Marathassa to comply with all international
requirements and to have safety and pollution prevention systems in place, which met
and exceeded industry standards, those systems are of no value if the crew does not
follow them.
[132] In that regard, the Crew was audited by Lloyd’s Register onboard the Marathassa
before leaving Japan, and was found to be familiar with the ISM Manual and capable of
implementing the requirements.
[133] There were also systems in place to monitor the familiarization and performance
of the crew onboard the Marathassa.
[134] Each morning, the Captain met with the Chief Mate (also known as the Chief
Officer), on the Bridge and reviewed the activities of the previous shift and enquired
about any problems. The Bridge is the area of the ship deck where the navigational
activities are carried out and where some of the ship alarm panels are located. The
hierarchy of the deck crew is the Captain (who is in charge of all areas on the ship),
Chief Officer, 2nd Officer, 3rd Officer and then other seaman.
[135] The Engineering area is managed by the Chief Engineer (who reports to
the Captain), and includes the 2nd Engineer, 3rd Engineer and other engineering crew.
[136] After being briefed on the Bridge each morning, the Captain then spent
approximately an hour with the Chief Officer reviewing the upcoming activities for the
day, including any drills and maintenance to be performed.

[137] The Captain also met with the 3rd Officer each morning and similarly reviewed
the activities over the last shift and the upcoming duties of the day.
[138] The drills that the crew were required to perform related to safety, security and
environmental protection, and training videos were posted online for the crew to review.
According to the Captain, training videos were used a lot on the vessel and the drills
were scheduled and well organized.
[139] The Captain confirmed that all of the drills scheduled by the ISM Manual were
always performed by the crew at the times required by the schedule. The shipowner
knew whether the drills were performed because the drills were monitored online.
There was an online system whereby the owner received a report every two hours
regarding the activities onboard, including the completion of any drills.
[140] Each day at approximately 11 am, the Captain began his inspection of any drills
or maintenance that were scheduled for that day. The 2nd Officer and 3rd Officer joined
the Chief Officer to carry out the drills.
[141] At noon each day, the Captain met with the Chief Engineer to make a report to
the shipowner about the activities of the vessel in the previous 24 hours, including, but
not restricted to, navigation details, activities in the engine room and calculations for the
consumption of fuel oil.
[142] Before retiring for the evening, the Captain met again with the crew on the Bridge
to review whether there were any difficulties and to review the upcoming activities for
the overnight period.

[143] The 3rd Officer verified to Transport Canada that he managed the training videos
onboard. He also recorded the results of the scheduled drills online, and he printed a
copy of the results for the Captain.
[144] The 3rd Officer further confirmed that weekly inspections were conducted of the
equipment onboard. The 2nd Officer also verified that equipment inspections occurred
and that he conducted the inspections required of him as scheduled in the ISM Manual.
The Chief Engineer and the 2nd Officer both stated that weekly testing of all of the
alarms were conducted by the crew.
[145] According to the Captain, the crew members were all successful in their
familiarization, and he had no complaints about their work. He noted that there were
some “little details” to iron out as the crew became familiar with a new ship. When
commenting on whether he was satisfied with the performance of the crew, the Captain
replied, “For sure.”
[146] So, although the Crown asserts that there is no evidence that the crew actually
completed the familiarization training, there is significant evidence which establishes
that they did complete the training. The Crown tendered the completed and signed
familiarization checklists that Transport Canada went through in detail, testifying that
they are the standard checklists in the industry. Various members of the crew verified in
statements tendered by the Crown that they completed the familiarization of the vessel
training. Significantly, the Captain verified that every crew member received their entire
familiarization training and he was confident of their abilities.

[147] In support of the statements by the Captain, Chief Engineer and the crew about
the onboard training and drills, there were several entries in the official Log Book and
Rough Log Book related to drills. For example, there was an “Oil Spill Drill” on April 4,
2015, and an “Oil Pollution Evaluation” on April 5, 2015, just days before the spill.
[148] The most compelling evidence of the crew’s familiarization, of course, is the
performance of the crew onboard the Marathassa. The crew was audited by an
external auditor onboard the vessel and a Safety Management Certificate was issued.
Transport Canada found it reasonable to rely on the Certificate as proof of a proper
external audit of the crew.
[149] Two marine pilots were on the vessel for several hours on three occasions,
putting the crew through complex exercises, and neither pilot had any concerns about
the performance of the crew.
[150] The Captain oversaw all drills by the crew during the voyage as scheduled by the
ISM Manual, and the Captain was confident in the abilities of the crew. The results of
the drills were also transmitted to the owner.
[151] Inspector Gill from Transport Canada spent a full day on the Marathassa putting
the crew through various drills, and Inspector Waheed spent an entire day on the vessel
also directing the crew to perform various tasks. Neither inspector had any concerns
about the performance of the crew.
[152] The evidence clearly establishes that properly trained crew members were hired
to crew the Marathassa, the crew received the proper familiarization training to operate
the vessel, an external auditor was satisfied that the crew were familiar with the ISM
Manual and were implementing it, and the crew underwent constant testing and
monitoring onboard the vessel to ensure that they were executing their duties in
accordance with industry standards.
[153] The Captain further confirmed that the Marathassa conducted all of the
equipment inspections as required by the ISM Manual, including all of the alarm
systems.
Mistake of Fact
[154] In order to succeed with a defence of mistake of fact, the defence must establish
that the mistaken belief is both honest and reasonable.
[155] In R. v. MacMillan Bloedel Ltd., 2002 BCCA 510, the company was charged with
depositing a deleterious substance in Crabapple Creek.
[156] MacMillan Bloedel operated a facility with underground pipes in Skidegate in
Haida Gwaii. In 1993, the Ministry of Environment informed MacMillan Bloedel that its
underground pipes may be subject to leaks. As a result, MacMillan Bloedel dug up and
tested the pipes, which were found to be sound. In fact, the pipes were assessed to be
in “mint condition” and “like new”. In 1997, a leak in the pipes caused diesel fuel to leak
into Crabapple Creek. Upon investigation, it was discovered that the leak was caused
by microbiologically influenced corrosion, which was likely caused by the excavation of
the fuel lines in 1993.
[157] MacMillan Bloedel defended the charge on the basis of an honest belief that the
pipes were in sound condition. Alternatively, MacMillan Bloedel argued that it took all
reasonable care to avoid the incident. The trial judge rejected the due diligence
defence and found MacMillan Bloedel guilty of the charge. On a summary conviction
appeal, the BC Supreme Court accepted the defence of due diligence and set aside the
acquittal.
[158] The Court of Appeal dismissed the appeal of the acquittal on the basis that
MacMillan Bloedel had made out the due diligence defence of mistake of fact. The
majority disagreed with the dissenting view that:
“the summary conviction appeal court judge misdirected himself by

focusing on the specific cause of the leakage from the Skidegate pipes,
and in finding that because MacMillan Bloedel could not have foreseen the
specific cause of the leakage, the trial judge’s conclusion could not be
sustained. The fact that the fuel leakage occurred as a result of an
unforeseeable cause is a relevant factor to consider in assessing the
defence of due diligence, but it is not determinative of the issue.”
[159] In rejecting that view, the majority noted that the fact that the leak occurred as a
result of an unforeseeable cause satisfied the first part of the due diligence defence. In
particular, Sault Ste. Marie at para 60 states, “The defence will be available if the
accused reasonably believed in a mistaken set of facts, which, if true, would render the
act or omission innocent or, if he took all reasonable steps to avoid the particular
event.” [Emphasis added]
[160] The Court also noted that the focus must be on the foreseeability of the actions
which lead to the event, not the foreseeability of the general risk of contamination. It is
sufficient for the accused to “establish that he did not know and could not have known of
the hazard”. The Court further held that whether the accused demonstrated a mistake
of fact under the first branch of the due diligence defence, or took all reasonable steps
under the second branch, both must be in relation to the “particular event”.
[161] In MacMillan Bloedel, the particular event giving rise to the charge was found to
be “the discharge of fuel on May 16, 1997, into Crabapple Creek from a leak in
MacMillan Bloedel’s underground pipes at Skidegate.” The Court held that MacMillan
Bloedel did not know about the hazard and honestly believed that the pipes were sound.
The Court noted that the leak was not caused by ordinary corrosion, but by
microbiological corrosion, which was not reasonably foreseeable.
[162] In this case, the particular event was the discharge of fuel oil into English Bay
from defects in a fuel tank and through a defective valve. The Marathassa argues that
although the general risk of pollution was foreseeable and preventative measures were
created for that risk, the shipbuilding defects which led to the particular event were not
foreseeable.
[163] Relying on Fullowka v. Royal Oak Ventures Inc., 2008 NWTCA 4, R. v. Lonkar,
2009 ABQB 345, at para 40, and R. v. Sunshine Village Corporation, 2010 ABQB 493,
at para 90, the Marathassa notes that, “The legal concept of foreseeability incorporates
the idea that the event is not only imaginable, but that there is some reasonable
prospect or expectation that it will arise…”.
[164] The Marathassa submits that the existence of two shipbuilding defects were not
foreseeable by anyone, including those third parties who were also inspecting the
vessel for any clue that the Marathassa had discharged fuel oil. Further, that the owner,
the external auditors, the crew and even Transport Canada were under the mistaken
belief that the vessel had been built to industry standards free of all defects.
Honest Belief
[165] The Crown submits that there was no evidence at trial that the Marathassa had
an honest belief that fuel tanks would not leak fuel oil into the pipe passage
compartment or that the valve would not fail and allow fuel oil to leak into the overboard
discharge pipe. However, the Captain said in his statement to Transport Canada that
he never considered that it would be possible to have an oil leak from a brand new ship.
The Captain further stated that no one could imagine that a valve in a brand new vessel
would have a foreign body in the base, and that it was impossible to imagine.
[166] It is noteworthy that individuals from Port Vancouver, the Coast Guard and
Transport Canada were on the vessel on April 8 and 9, looking specifically for a source
of a fuel oil leak, and none of them considered it prudent to check the pipe passage
compartment for a leak from one of the fuel tanks. In addition, none of them considered
it prudent to check all of the valves to ensure they were tight, or, if they did, they did not
find any concern. Inspector Waheed, in particular, knew that there had been a cargo
hold washing process on the morning of April 8, and yet there is no evidence that he
checked the valve in question, or, if he did, had any concerns about it.
[167] It is fair to say that not only did the Marathassa have an honest belief that there
were no defects in a fuel tank or in a valve, but so did every person who was on the
vessel investigating an oil leak. The test for mistake of fact is that of a reasonable
person in a similar situation. See R. v. Tavares (1996) 144 Nfld. & PEIR 154 (N.L.C.A.)
para. 28, where the Newfoundland Court of Appeal noted:
[28] To state the test another way, to establish lack of fault the accused
must establish that he or she was honestly mistaken on reasonable
grounds, i.e., that a reasonable person in the same situation would have
made the same (non-negligent) factual mistake.
[168] In R. v. Nitrochem, [1992] O.J. No. 3890, 1992 CarswellOnt 215 (ONCJ Prov.
Division), a trucking company had to remove nitric acid from one of its tanker trucks
following a motor vehicle accident. One of the emergency valves on the truck dissolved
when the nitric acid was being transferred through an emergency unloading hose,
causing a spill of nitric acid. It turned out that the emergency valve was made from a
material called monel, rather than stainless steel, as the trucking company honestly
believed.
[169] The company called evidence that all of the valves it ordered for its tankers were
stainless steel; the tanker in question was a used tanker which the company acquired
when it purchased another company; the tanker was described as a “stainless steel
tanker”; it was an industry standard that stainless steel tankers have stainless steel
valves; the monel valve had been placed on the used tanker as a special order; and
monel valves cannot be visually distinguished from stainless steel valves.
[170] The Court commented at para 98, that if the company had “purchased a new
tanker and indicated stainless steel Betts valve, then it is reasonable to assume it will be
stainless steel. This valve was purchased along with a fleet of trucks.”
[171] While it is prudent to have an inspection conducted of a used vehicle or vessel, it
is not expected on a brand new vehicle or vessel. As Mr. Behramfram noted, it is
industry standard for both the external auditor and the owner to rely on the quality
control processes of the shipbuilder of the vessel.

[172] In this case, where the ship was brand new and the construction had passed an
external audit, it was reasonable for the owner and crew of the Marathassa to believe
that the ship was free of defects. As such, the honest belief of the Marathassa was also
reasonable.
Foreseeability
[173] The Crown notes that a due diligence defence requires that the event be
unforeseeable, or that all reasonable steps were taken to avoid the foreseeable risk.
The Crown submits that the leak of fuel oil from the fuel oil tank into the pipe passage
compartment was foreseeable, for several reasons.
(i) Valves
[174] The Crown argues that the Marathassa should have checked the faulty valve to
ensure that it was fully tightened. The Crown says that if the crew had checked the
valve, they would have discovered the debris and avoided the leak of fuel oil.
[175] It was the evidence of Mr. Behramfram that valves are certified by the
classification society. Mr. Stenvik and Captain Nelson agreed with Mr. Behramfram that
shipowners are not expected to dismantle and inspect ship valves upon taking delivery
of a ship.
[176] According to Mr. Stenvik, valves are inspected before they are installed and then
during pressure testing of the piping and tanks. After the ships is delivered to the new
owner, valves will generally be examined every five years.

[177] Mr. Stenvik also stated that you can tell whether a valve is closed by looking at
the spinnaker on the valve which will be higher if it is open and lower if it is closed. You
can also feel the spinnaker for tightness.
[178] There are numerous valves on a vessel the size of the Marathassa. According to
the expert witnesses, the crew would only be expected to examine valves when they
are involved in an operation onboard, to ensure that they are open or closed, as
required.
[179] The Chief Engineer was positive that the valve in question had not been touched
during the voyage, as there were no procedures which required the valve to be opened.
So, the valve was in the same closed position during the cargo washing process as it
was in when delivered by the shipbuilder.
[180] According to the Captain, after the Marathassa was apprised of an oil spill on
April 8, the crew sounded the tanks and checked the valves. Nothing was found which
indicated a leak may have occurred.
[181] When the crew examined the subject valve again, after fuel oil was found in the
overboard discharge pipe, the valve was fully tight when checked by hand. It was only
when a wrench was used to try to force the valve tighter that some play was found in
the valve and it moved a little bit.
[182] Mr. Stenvik and Mr. Behramfram both agreed that you would tighten a new valve
by hand unless it could not be done by hand, and then you would use a wrench to close
the valve.
[183] Captain Nelson initially stated that you would tighten all valves with a wrench.
Later he stated, “the--normally on a new ship, you wouldn’t close a valve with a wheel
key.” Then moments later, he said you would use a wrench on a new valve to give it an
extra tug. The evidence was contradictory, and I prefer the evidence of Mr. Stenvik and
Mr. Behramfram that new valves are tightened by hand unless a wrench is required.
Since the defective valve appeared fully tightened by hand, there would be no reason to
use a wrench on it. A wrench was only used after oil was discovered in the discharge
pipe and the pipe passage, because the crew then knew that there must be a gap in the
valve.
[184] The Crown points to a log book entry which notes that various valves in the
engine room were greased, suggesting that the subject valve may have been opened
then. There is no evidence that the valve in question was one of the valves which was
greased, and the Chief Engineer was emphatic that it had never been touched.
[185] The Crown notes that cargo washing procedures also occurred at sea prior to
April 8. The Crown argues that the valve would have had a gap in it then because of
the debris, and crew should have noticed the discharge of oil during those earlier
procedures. However, there is no evidence that any oil was discharged, and the
Captain was not certain whether the same pump was used on April 8, as for the earlier
washes. Also, it is not known when prior to April 8, the alarms became dislodged and
when oil entered the pipe passage compartment. The alarms could have become
dislodged on April 7, or on any day after the previous cargo washing procedure, in
which case there would have been no escape of oil.

[186] The valve would have appeared closed to all those who observed and/or tried to
hand tighten it. As previously noted, when Inspector Waheed was conducting his
detailed inspection on April 9, looking for evidence of an oil leak, he knew there had
been a cargo rinsing operation on April 8. Although valves are a known risk for causing
a leak of fuel oil if they are not closed for certain operations, Inspector Waheed either
did not check the faulty valve, or, if he did, he did not find anything amiss. That is
because the valve appeared and felt closed.
[187] Most significantly, the argument by the Crown that the Marathassa could have
avoided the spill if the crew had tightened the valve with a wrench is not supported by
the evidence. The evidence is clear that even after the valve was tightened with a
wrench, the valve was not fully sealed and there was debris in the valve. According to
Mr. Stenvik, even the smallest gap in a valve seal will cause fuel oil to leak. The debris
was not visible and the crew would have no reason to disassemble the valve without
knowing about the fuel oil in the discharge pipe and the pipe passage compartment.
Therefore, even if the crew used a wrench to tighten the valve before the cargo washing
exercise, the spill would not have been avoided.
[188] It was not foreseeable to the crew or to Transport Canada that fuel oil may have
leaked through the valve in question. It was only with 20/20 hindsight that it was
recognized that fuel oil must have leaked through the valve in order to reach the
discharge pipe. That knowledge led to the valve being disassembled, at which time
debris and fuel oil were then visible.

(ii) Fuel Discrepancy
[189] The Crown notes that there was a discrepancy between the amount of fuel oil
that the Marathassa expected to consume each day on the voyage from Busan to
Vancouver and what was actually being consumed, which should have alerted
the Captain that fuel oil was missing. However, according to the Captain, there was not
a remarkable discrepancy which would cause the crew to investigate missing oil. It was
the first voyage for the vessel, so the exact rate of expected consumption was unknown.
The vessel had also encountered very rough weather, so it was not unusual to have
some discrepancy. Mr. Stenvik agreed that there are lots of variables on a voyage that
can cause a consumption discrepancy and it is only if the discrepancy is significantly
large that you would suspect there is a leak.
(iii) Soundings
[190] The Crown argues that the Marathassa should have physically measured the fuel
oil in the fuel tanks each day to ascertain whether fuel oil was missing. The Crown
argued that a significant reduction in fuel oil could indicate that there is a leak.
Although, as already noted, there was not a significant discrepancy in fuel oil
consumption during the voyage.
[191] There were two ways of measuring fuel oil in the fuel tanks on the Marathassa.
One was by relying on the flow meters, which provided instrument readings of the fuel
levels. The other was to physically measure the level of the fuel in the tanks by a
process called sounding, which involves inserting a dipstick into the tanks, similar to
measuring oil in a motor vehicle.

[192] Soundings are the most accurate measurement of the amount of fuel oil in a fuel
tank and the ISM Manual required daily soundings. The Crown says that if the crew
had sounded the fuel tanks every day it would have been apparent that fuel oil was
missing and the crew would have checked the pipe passage compartment.
[193] The difficulty is that soundings are not accurate in rough seas because the
vessel is being tossed around, causing fuel oil to slosh around in the tanks, resulting in
false sounding readings. Except for a few days of the journey from Busan to
Vancouver, the Marathassa was in very rough weather, so the soundings would not
have been accurate. Even if soundings could be taken on the few days of good
weather, they could not be compared to soundings taken in poor weather, because
those soundings would not be accurate. So the soundings taken in good weather would
not be useful.
[194] Captain Nelson testified that there are calculation tables that can be used to
account for a vessel listing. However, listing is where the vessel is tilting to one side,
and when the fuel is concentrated on one side of the ship. The Marathassa was not
resting on one side, it was rocking strenuously back and forth.
[195] The Captain, in consultation with the Chief Engineer, decided to rely on the flow
meter readings, which was reasonable. Those readings did not show a significant
discrepancy in the consumption of fuel oil from day to day.
[196] In addition, the crew did sound all of the tanks on the evening of April 8, after fuel
oil was observed in the water surrounding the Marathassa, and they did not conclude
that there was any missing fuel oil.

[197] The strongest evidence that soundings of the tanks would not have led the crew
to conclude that there was fuel oil missing, is the evidence of Inspector Waheed’s
actions. He demanded that the crew sound all of the fuel tanks again shortly after
beginning his investigation of a fuel leak on the Marathassa on April 9, 2015.
[198] Despite having all of the previous soundings of the tanks and despite being of the
view that the Marathassa was leaking fuel oil, Inspector Waheed did not conclude that
fuel oil was missing. In fact, when Inspector Waheed had completed his investigation at
the end of the day, he reported to his superior at Transport Canada that there was no
evidence of an oil leak from the Marathassa. He specifically stated that all of the fuel
tanks were sounded and the soundings were “ok”.
[199] The Captain and Chief Engineer had a valid reason for relying on the flow meter
readings during the voyage. The evidence establishes that even if the tanks had been
sounded every day, the soundings would not have indicated that there was any missing
fuel oil.
(iv) Sounding the Pipe Passage
[200] The Crown further argues that if the crew had sounded the pipe passage
compartment, they would have discovered that there was fluid in the pipe passage.
[201] The ISM Manual requires that empty compartments, like the pipe passage
compartment, be sounded regularly, but not daily like the fuel tanks. The Captain noted
that since the vessel had only been in operation for 3 weeks, the empty compartments
were all recently inspected and ensured to be dry. Therefore, there was no reason for
the Marathassa to sound the pipe passage so soon after departure.

[202] It is notable that Inspector Waheed did not request that the pipe passage be
sounded until it was known that fuel oil was in the pipe passage compartment. As with
the crew, it was not foreseeable to Inspector Waheed that fuel oil may have leaked into
the pipe passage from holes in a brand new fuel tank on a brand new ship. It was only
foreseeable once traces of oil were found by the diver in the overboard discharge pipe
and the piping was traced back to the pipe passage compartment, where oil was also
found.
[203] The Crown suggests that the Captain did not know that there was a pipe
passage on the Marathassa. The Crown relies on comments made by the Captain
while interviewed by Transport Canada. Inspector Waheed asked the Captain when he
learned about a pipe passage alarm, and the Captain answered by giving a long
explanation of not being aware that there was a duct keel onboard. Inspector Waheed
had been incorrectly referring to the pipe passage as a duct keel. The Marathassa did
not have a duct keel.
[204] The Captain explained that he did not think that ships had been built with duct
keels for the last 20 years and that the Marathassa did not have a real duct keel. It
appears that the Captain was responding to Inspector Waheed’s earlier assertion that
there was a duct keel on the Marathassa.
[205] It was clear from the Captain’s full statement, that he knew there was a void
space where the pipe passage was located and he talked about the specific concerns
about void spaces and how they had to be entered. He also knew that void spaces
have to be sounded periodically to check for any unwanted fluids.

(v) Bunkering
[206] The process for a bulk carrier to take on fuel is called bunkering, and it is a
process which presents risks for fuel oil spills. For that reason, the Marathassa had a
comprehensive process for bunkering. The Crown does not take issue with the
recommended procedure, but argues that there is no evidence as to how the bunkers
were actually received by the Marathassa in Busan, or whether the procedures in the
ISM Manual were followed by the crew.
[207] The Captain reported in his statement that there is a three step process for
bunkering and that he ensured it was followed in Busan.
[208] The Captain stated that when they receive instructions from an owner as to the
amount of fuel to accept, they have to calculate how much fuel is already onboard to
ensure that they will not be over capacity, which could result in spillage. The crew then
calculates how much fuel will be put in each fuel tank and what the target sounding
should be. For example, the target sounding might be that the tanks only be filled to 90
percent capacity. There are crew members assigned by the ISM Manual to those pre-
bunkering tasks.
[209] The Captain stated that in Busan, he and the Chief Engineer calculated the
amount of fuel they could accept and their target soundings for the fuel tanks. One of
the officers does the soundings during the bunkering and provides continuous
information about the progress of the bunkering.
[210] The 3rd Officer indicated in his statement that during the bunkering in Busan, he
was on the Bridge and was responsible for monitoring the bunkering barge, along with
another seaman. He stated that the engineers monitor the fueling process. The 3rd
Officer pointed out the Rules for bunkering to Transport Canada as contained in the
Official Log Book.
[211] The 2nd Officer stated that he was also on the Bridge during the bunkering in
Busan and one of his duties was to record the times that the bunkering was started and
finished, as communicated to him by the engineering crew. He saw the 2nd Engineer
and the 3rd Engineer on the deck taking soundings of the fuel tanks to see whether they
had reached the target amount.
[212] The Chief Engineer stated that when the bunkering was started in Busan, he sent
all of the engineers into the engine room to check for any leakage. When the bunkering
was occurring, he stopped the bunkering when the high level alarms were reached for
each tank. The tanks were filled to between 90 and 92 percent of capacity. When the
tanks reached that point, the engineers informed him and he directed them to close the
valve on that tank and to open the valve on the next tank to receive bunkering. He also
relied on the high level alarms to indicate when the target capacity had been reached.
[213] So, the evidence before the Court was that the process for bunkering as
contained in the ISM Manual was followed, soundings were done of the tanks during
bunkering, the high level alarms were also utilized to assess the capacity of the tanks
and the fuel tanks were all checked during the bunkering for any leakage. In addition,
the Marathassa had two surveyors onboard monitoring the bunker process, which is not
required by any conventions.
[214] There is no support for the Crown’s assertion that there is no evidence as to the
process followed for bunkering in Busan.

[215] The Crown also asserted that there must have been some leakage into the pipe
passage when the tanks were filled in Busan because the high level alarms were
dislodged. However, it is not known when they became dislodged. It is known that they
were dislodged on April 9, 2015, when they were discovered. The only reasonable
inference is that they were also dislodged on April 8, 2015, which led to a discharge of
fuel oil into the pipe passage compartment and through the faulty valve to the overboard
discharge pipe. The position of the alarms prior to April 8, 2015, is not known. Clearly,
they were functioning properly during the bunkering procedures as the Chief Engineer
relied on them and the soundings to know when the tanks were filled to target capacity.
(vi) Water in the Cargo Hold
[216] The Crown notes the evidence of Inspector Waheed that he found water still in
the cargo hold on April 15, and that the Chief Engineer commented that the cargo hold
was draining slowly on April 8. The Crown argues that the crew should have
investigated the slow leaking cargo hold.
[217] However, the evidence of Inspector Waheed does not accord with the other
observations. On the evening of April 8, Mr. James asked the Captain whether bilges
had been discharged from the ship. Bilges are volumes of water that fill empty cargo
holds to balance the ship on ocean voyages. They are emptied into the surrounding
water when the vessel is ready to take on cargo. The Captain had told Mr. James that
bilges had not been emptied, as they had not. However, one of the holds had been
washed with fresh water. Mr. James inspected the cargo hold and testified that the
holds were clean of any fuel oil traces or other substances. Had Mr. James found water
in any of the cargo holds he would have noted it, as he was looking specifically for
traces of activity in the cargo holds.
[218] Mr. Brady also checked the cargo hold at approximately 11:30 pm on April 8, as
the Captain told him they had washed the cargo hold and discharged the cleaning water
earlier in the day. Mr. Brady also did not find any concerns with the cargo hold.
[219] Inspector Waheed acknowledged in cross-examination that Inspector Gill would
have checked the cargo holds during his inspection on April 9, to ensure they were
clean. Inspector Gill made no notation that there was any residue water in any of the
holds.
[220] As stated in my Reasons dated April 20, 2018, I did not find Inspector Waheed to
be a reliable witness and I found that he tailored his evidence in Court. Given the
inconsistency of Inspector Waheed’s evidence with the other evidence regarding the
condition of the cargo hold, I do not accept that on April 15, 2015, the Chief Engineer
said the crew had difficulty draining the hold on April 8. I note that when Inspector
Waheed later obtained a formal statement from the Chief Engineer, Inspector Waheed
did not ask him whether the crew had difficulty draining the cargo hold, despite the fact
that the purpose of the statement was to gather evidence.
[221] I also reject the evidence of Inspector Waheed that the Chief Engineer also
stated on April 15, that no one was monitoring the cargo washing operation for pollution.
That evidence is contrary to the log book entry for the morning of April 8, 2015, which
was tendered by the Crown and which states that a pollution watch was conducted. In
fact, there are notations on various dates in the Official Log Book of the crew conducting
a pollution watch as required by the ISM Manual.

[222] Again, I note that Inspector Waheed did not ask the Chief Engineer that question
during the formal statement from the Engineer, which was audiotaped for the purpose of
gathering evidence.
[223] Given the lack of reliability of the testimony of Inspector Waheed, and his efforts
to tailor his evidence to support the Crown’s case, unless any of his testimony is
supported by other evidence, I do not place a lot of weight on it.
(vii) Alarms
[224] The Crown refers to records of alarm activity aboard the Marathassa and argues
that:
a) the high level alarm for the No. 1 Fore Fuel Oil Tank(S) sounded at 5:06
hours on March 20, and was never reset, which means that the crew
ignored it;
b) the high level alarm for the No. 1 Aft Fuel Oil Tank(S) sounded at 17:31
hours on March 22, and was never reset, which means that the crew
ignored it; and
c) the high level alarm for No. 3 Fuel Oil Tank(S) sounded at 9:15 hours on
March 28, 2015, and was never reset, which means that the crew ignored
it.
[225] The Crown also argues that the records further show that various alarms
sounded throughout the three week voyage and there is no evidence that they were
properly attended.
[226] The Crown further asserts that the pipe passage alarm must have been activated
during the bunkering process in Busan.
[227] Beginning with the three alarms that the Crown says were activated in March and
were never reset, the records must have been misinterpreted by Inspector Waheed or
must be inaccurate. Both Inspector Gill and Inspector Waheed went through
the Marathassa with a fine toothed comb on April 9, looking for deficiencies and
indications that there was a leak of fuel oil. They specifically checked all of the alarms
in the engine room and on the Bridge. Neither inspector found anything amiss with any
of the alarms. If three alarms were continuously sounding without any response from
the crew, Transport Canada would have taken immediate action.
[228] The Chief Engineer attempted to explain during his statement that the alarm
records cannot be relied upon because of something to do with work on the
compressor. However, the interviewer was speaking over top of him and so his full
explanation cannot be heard. Then, his explanation was cut off by the interviewer.
[229] The simple fact is that alarms could not have been ringing continuously for
numerous days right up to April 9, when Inspector Waheed and Inspector Gill
specifically examined the alarms for any problems and found none. In addition, both
pilots who were on the ship for several hours on three occasions had no concerns about
the performance of the vessel or the crew. If the crew were ignoring alarms for hours
on end, the pilots would have presumably noticed it.
[230] In terms of the suggestion by the Crown that alarms were sounding throughout
the voyage, the evidence of Mr. Stenvik was that several alarms will sound in a day
because fuel oil is being transferred from one tank to another, or there is a low fuel
level, or there is a high exhaust temperature or because of bilge levels, or for a variety
of other reasons. The Captain noted that there are so many alarms during the course of
a voyage that they are not recorded in the Official Log Book because it would take too
many volumes to record them all. The alarms are only recorded if they indicate a
problem.
[231] There is nothing unusual about alarms ringing frequently on a ship the size of
the Marathassa. The key is that they must be investigated. According to the
statements of the Captain, Chief Engineer and two Officers, the alarms were
investigated and reported as required.
(viii) The Pipe Passage Alarm
[232] While high level alarms detect the height of the fuel in a fuel tank, the pipe
passage alarm measures the presence of fluid in the pipe passage, an area which
should be devoid of fluid.
[233] The Crown argues that the pipe passage alarm must have sounded prior to the
spill because there was fuel oil in the pipe passage compartment which the alarm was
intended to detect. There is no evidence, however, about where the pipe passage
alarm was located in relation to the location of the fuel oil.
[234] According to the Captain, the Chief Engineer and the 3rd Officer, the pipe
passage alarm had not been activated prior to the spill. The 3rd Officer said he would
have definitely heard the alarm as it had a very loud sound when he heard it on April 14,
and it lit up then as well.
[235] The Captain noted that the pipe passage alarm was often activated after the spill
when the clean-up of the pipe passage was occurring, but he was not made aware that
it was activated before the area was under reparation.

[236] The Crown points out that the Captain commented that on April 12, that the pipe
passage alarm had been dimmed down so as to not disturb the crew at night. There is
nothing wrong with the alarm being dimmed down after having been activated by
ongoing reparation work in the pipe passage compartment. There is no evidence that it
was ever dimmed down prior to the crew undertaking the reparation work.
[237] In any event, Inspector Waheed observed the alarm on April 12, despite it being
dimmed down, so presumably he would have noted it on the other days had it been
activated but dimmed down. That is especially so on April 9, when he was conducting a
detailed inspection and specifically looking at the alarm panels in the engine room and
on the Bridge.
[238] So, although the Crown insists that the pipe passage alarm must have been
activated prior to the spill, the evidence strongly suggests otherwise. In particular, none
of the third parties onboard the ship on April 8 or 9, noted the alarm. Significantly,
neither Inspector Waheed nor Inspector Gill, who were specifically looking for alarm
activity, noted a pipe passage alarm or any alarm of concern during the many hours
they were on the vessel on April 9.
[239] The Crown further asserts that the Chief Engineer did not even know there was a
pipe passage alarm. However, the Chief Engineer said in his statement that he could
not understand why the pipe passage alarm had not sounded when there was fuel oil in
the pipe passage, and he sent photos to the Superintendent enquiring why the alarm
had not sounded. Clearly, the Chief Engineer knew there was a pipe passage alarm,
that it should have been activated and that it had not sounded.
[240] It is not known why the pipe passage alarm did not activate on April 8 or 9, when
fuel oil was in the pipe passage, but it later did activate frequently when the fuel oil was
being moved around by the reparation work. Given the defects on three other alarms, it
is a reasonable inference that the pipe passage alarm may have been operating
sporadically. In any event, it was not activated when it should have been activated, and
that would not be foreseeable to the owner or the crew given the regular testing of all of
the alarms throughout the voyage.
(ix) Training on Alarms
[241] It was the evidence of several witnesses that all seafarers are specifically trained
to respond to alarms. It is part of their daily training from the time they are cadets.
Every expert witness, including Captain Nelson, testified that they would expect a crew
member to respond to an alarm.
[242] The Crown points to the evidence of the 2nd Officer that there was no formal
training and were no formal procedures by the Marathassa for responding to alarms.
However, there would be no reason for there to be a formal procedure to respond to an
alarm. Every seafarer knows it is their duty to respond to an alarm and how to do so.
[243] When the 2nd Officer was asked how he would respond to an alarm, he stated
that if it were an engine room alarm or a pipe passage alarm, he would notify the Chief
Engineer or the engine room. He further stated that although he did not know what a
pipe passage alarm is for, he knew that it was related to the engine room and he would
tell the Chief Engineer. The 2nd Officer went on to say that if the alarms were not
engine room alarms, he would notify the Chief Mate or the Captain. Clearly, the 2nd
Officer knew how to respond to alarms.

[244] The 3rd Officer stated that he was certain that he did not ever hear the pipe
passage alarm sound until April 14, when he pointed it out to the Captain.
[245] The Chief Engineer gave a statement that if alarms sounded or lit up during
normal operations, he would assess the cause of the alarm and take action. He further
stated that no one had reported any activity by the pipe passage alarm.
[246] The Captain set out the process for a response to alarms which was essentially
the same as the Chief Engineer and two officers. If the alarm required further
investigation, the crew member would bring it to the attention of a higher ranking officer
and ultimately the Captain, if it could not be resolved. The assertion by the Crown that
the 3rd Officer said he would just let the alarm ring is not accurate. The 3rd Officer said
that if the engineers responded to an alarm in the engine room and it stopped ringing,
he would not respond.
[247] The Crown argues that the 3rd Officer and the Captain did not know that a pipe
passage alarm existed prior to the spill. According to Mr. Stenvik, there are hundreds of
alarm systems and alarms on a ship the size of the Marathassa. It was clear from the
statements of the Captain, Chief Engineer, 2nd Officer and 3rd Officer that they all knew
that alarms must be responded to and they always responded to alarms. The 2nd
Officer and the 3rd Officer confirmed that if they did not know why an alarm was
sounding, they would consult with their superiors.
[248] When the Captain was told about the pipe passage alarm, he understood its
purpose. He also indicated that all alarms must be investigated. There is no reason to
conclude that the Captain would not have responded to the pipe passage alarm, or any
alarms, if he was advised they had been activated and not resolved.
[249] There was no requirement for the Marathassa to have a procedure for
responding to alarms, because the procedure is well known. All of the experts,
including the Crown expert, agreed that the only procedure is to investigate the alarm
and to report it if it cannot be resolved, and that all seamen are aware of that
requirement.
(x) Testing of Alarms
[250] The Chief Engineer gave evidence that all of the alarms were tested on a weekly
basis every Saturday for lights and sounds.
[251] The Captain verified that the engineers checked the alarm sounds and lights to
see if they were responding to activation. If they found a problem, they would either
report it to the Chief Engineer or the Chief Officer, depending on the department that
was responsible for the alarm.
[252] The Captain also stated that on every watch, which is every four hours, the crew
on the Bridge tested the operating condition of the light bulbs and buzzers to ensure
that the lights and sounds were in operating condition. That testing appears to differ
from, and be additional to, the activation testing of all of the alarms which occurred
every Saturday.
[253] As indicated, there was evidence that the crew on a ship like the Marathassa is
divided into two groups. One group is the engineering crew, who report to the 3rd
Engineer, 2nd Engineer, Chief Engineer and the Captain. The other group is the deck
crew, who report to the 3rd Officer, the 2nd Officer, the Chief Officer and the Captain.
According to the Captain, if the pipe passage alarm was sounded, the crew would report
it to the engine room, and if not satisfied, to the Captain. The 3rd Officer also made that
statement.
[254] The Crown notes that the Chief Engineer was asked by Transport Canada who
did the testing of the alarms on the Bridge, and he replied that he did not know. That
does not mean that no one tested the alarms on the Bridge, only that Chief Engineer not
know the identity of the crew member who did the testing. The 2nd Officer stated that
that he assisted one of the engineers with the testing of alarms on the Bridge.
Specifically, the engineer would call the Bridge and ask the 2nd Officer to verify whether
the alarm had sounded.
[255] It is reasonable to conclude that the Chief Engineer would not be involved in the
physical testing of the alarms and calling the Bridge, but rather supervised the testing
done by his engineering crew. The evidence of the 2nd Officer is clear that alarms were
tested on the Bridge.
[256] In terms of the alarm testing on the Bridge on every four hour watch, the Chief
Engineer was not involved in those testing activities as he was not responsible for the
activities on the Bridge.
(xi) Log Books
[257] The Crown points out that the crew on the Marathassa used a Rough Log Book
and then later transferred the entries from the Rough Log Book to the Official Log Book.
According to the Captain, the 3rd Officer and the 2nd Officer, it is common for crews to
use a Rough Log Book on vessels like the Marathassa. The fact that notations were not
transferred to the Official Log Book for 4 days prior to the spill does not seem
problematic, as there is no suggestion that contemporary notes were not made in the
Rough Log Book. In fact, the Rough Log Book contains several entries for each of
those days.
Conclusion on Mistake of Fact
[258] Given the fact that the Marathassa was a new ship which had been subject to
several levels of quality assurance, the honest belief by the Marathassa that the high
level alarms were properly installed and the valve was free of debris, was reasonable.
The hazards of improperly installed alarms and of debris in a valve were simply not
foreseeable. As noted in MacMillan Bloedel at para 53, “The chain of foreseeability
from the cause of the event to the event itself is one and indivisible.”
[259] The hazards were also not foreseeable to any third parties on the vessel after the
spill, and especially were not foreseeable to two inspectors from Transport Canada,
both doing comprehensive inspections.
[260] Since the Defence has succeeded in proving on a balance of probabilities that it
was under a mistaken set of facts, it is not necessary to consider the second branch of
the due diligence defence. Satisfaction of the first branch is sufficient to provide a full
defence. Nevertheless, the trial was lengthy and extensive evidence was heard on the
second branch of the due diligence defence from many witnesses, including expert
witnesses. Therefore, I will also address the second branch of the test in order to
provide a full assessment of the evidence in the event of any further proceedings.
All Reasonable Care
[261] In R. v. Syndcrude, 2010 ABPC 229, at para 100, the Court identified the
following factors for consideration when assessing whether all reasonable steps have
been taken to avoid a particular event:
1) the nature and gravity of the adverse effect;
2) the foreseeability of the effect, including abnormal sensitivities;
3) the alternative solutions available;
4) legislative or regulatory compliance;
5) industry standards;
6) the character of the neighbourhood;
7) what efforts have been made to address the problem;
8) over what period of time, and promptness of response;
9) matters beyond the control of the accused, including technological

limitations;
10) skill levels expected of the accused;
11) complexities involved;
12) preventative systems;
13) economic considerations; and
14) actions of officials.
1) Gravity of the Effect/Character of the Neighbourhood
[262] The gravity of the effect is not limited to the singular incident of pollution, but also
the effect of a more widespread occurrence. In Syncrude, the Court stated:
“However, it is important to remember the purpose of the provincial and

federal legislation. The legislation is designed to protect the environment
and maintain migratory bird populations, respectively. As with most
regulatory offences, the legislation is not just directed at the immediate

and direct effect of the proscribed conduct but also at the potential harm if
that conduct was widespread.”
[263] Pollution of the environment by oil spills is of the greatest concern, and is one of
the primary reasons why the international shipping industry is so heavily regulated. The
gravity of an oil spill in this case is very high, and so the corresponding level of care
required of the Marathassa is also very high.
2) Foreseeability of the Effect
[264] As previously noted, the test for foreseeability is whether a reasonable person in
similar circumstances would have foreseen that there was a hazard. See R. v. Rio
Algom, [1988] 46 C.C.C. (3d) 242 (ONCA) and Lonkar, supra, at para 41.
[265] The hazards in this case of defective alarms and a defective valve were not
foreseeable. The Marathassa, the crew and Transport Canada all expected that the
brand new vessel would be free of those defects. Several of the witnesses, including
the Crown witnesses, expressed that you would not expect to see those types of
defects on a brand new vessel. The Marathassa conducted weekly testing on the
activation of all of the alarms, and on every Bridge watch the alarms on the Bridge were
tested for lights and sound. Two Transport Canada inspectors examined all of the
alarm systems on April 9, and found no concerns.
[266] The defect in the valve could not be detected visibly, or by tightening the valve,
whether by hand or wrench, as the debris was inside of the valve and not visible. So
although the valve was ultimately tightened as far as possible by hand and wrench, the
debris still created a gap through which oil could spill. All of the experts agreed that the
crew would not be expected to dismantle valves upon receipt of the vessel to look for
debris. The only reason the defective valve was dismantled was because the crew
realized, with the 20/20 hindsight of knowing that fuel oil travelled from the pipe passage
to the overboard discharge pipe, that there must be an internal problem with the valve.
3) Alternative Solutions Available
[267] In Gonder, supra, at para 20, the Court noted that the accused must establish
that there were no feasible alternatives that might have avoided or minimized the injury.
The Crown has suggested that greater care could have been exercised in various areas
by the Marathassa, or that the Marathassa has not proven on a balance of probabilities
that reasonable care was taken. As already noted, some of those areas of criticism are
not relevant to the particular event as they did not impact the outcome, and, in the areas
that are relevant, the Marathassa has demonstrated that all reasonable steps were
taken to avoid the hazard.
4) Regulatory Compliance and Industry Standards
[268] The evidence is overwhelming that the Marathassa met and exceeded the
regulatory requirements and industry standards, including testing by an external auditor,
and the Marathassa conducted ongoing inspections, training and drills.
5) Economic Considerations
[269] There is no evidence that there were any economic limitations for
the Marathassa from taking all reasonable steps to avoid the event.
6) Remaining Considerations
[270] The remainder of the factors outlined in Syncrude are either not relevant to the
present circumstances or have already been extensively addressed.
Conclusion on Reasonable Care
[271] Based on all of the evidence, I find that the Marathassa:
1) selected a shipbuilder from one of the highest ranking shipbuilding

communities in the world, and the shipbuilder was approved by Lloyd’s
Register;
2) designed a ship with pollution prevention equipment beyond that required

by regulation;
3) chose a flag state with the highest standards and safety requirements;
4) selected a classification society with high ranking surveyors. Those

surveyors inspected and approved the design and construction of the
vessel;
5) developed a safety management system and ISM Manual that passed the
scrutiny of an external audit. Although the Crown notes that there is no
evidence that an internal audit was first done by the owner, the expert
witnesses stated that Lloyd’s Register would have required it. In any
event, the safety management system and the ISM Manual passed an
external audit in the office by high ranking surveyors, which is more telling
than an internal audit;
6) met all statutory requirements and exceeded some with respect to

pollution prevention;
7) provided an ISM Manual to all of its crew that was one of the most
comprehensive in the international shipping industry;
8) retained a crewing agency which met all regulatory requirements and was
accredited by Lloyd’s Register after an external audit process;
9) requested crew members who were already familiar with the safety
systems and ISM Manual;
10) had the crewing agency verify the training certificates and sea service of
all of the crew;
Most importantly, the Marathassa:
11) required the Captain and Chief Engineer to undergo three weeks of
familiarization with the vessel, and the rest of the crew to undergo two
weeks of familiarization with the vessel;
12) required all of the crew to verify their knowledge of the familiarization
topics with a superior by going through a comprehensive checklist that,
according to Transport Canada, met industry standards. Although the
Crown argues that there is no proof that the crew actually completed the
familiarization, various members of the crew confirmed in statements that
they had gone through the familiarization. Significantly, the Captain stated
that all of the crew had gone through the entire familiarization and he was
confident of their knowledge and competence. The familiarization
checklist included knowledge about the safety management programs on
protection of the environment;
13) successfully passed an external audit of the equipment onboard the

vessel and the implementation of the ISM Manual by the crew on the
vessel. The crew was put through various drills by the auditor and was
successful. The Crown points out that there is no direct evidence from
Lloyd’s Register as to how the external audits were conducted in the office
and onboard the ship, but Mr. Stenvik, who has been present for
numerous external audits provided evidence of the standard process. The
experts and Transport Canada relied on the various certifications received
by the Marathassa and on the long standing reputation of Lloyd’s Register,
to conclude that the external audits of the office personnel and of the crew
onboard the ship were completed to industry standards. It was reasonable
for the owners to also conclude that Lloyd’s Register properly conducted
the audits;
14) provided further training onboard the vessel through regular training
videos, managed by the 3rd Officer and supervised by the Captain and
other officers;
15) scheduled the performance of drills and equipment inspections onboard

the vessel, including the testing of all alarm systems weekly. The owners
monitored the completion of the drills and the performance of other duties
by the crew online every two hours. The evidence establishes that all of
the inspections and drills were completed in accordance with the schedule
in the ISM Manual;
16) received noon reports from the Captain and the Chief Engineer each day
on the activities onboard the vessel in the previous 24 hours, including
navigational details, activities in the engine room and fuel oil consumption;
17) had an established process for bunkering which was followed in Busan.
Two surveyors were also onboard the vessel to oversee the bunkering
process, although not required by regulation or industry standard. The
bunkering process is not really relevant to these proceedings as there is
no evidence that there is any relationship between the bunkering process
and the spill. It is unknown when the three high level alarms became
dislodged and although the Crown has suggested that soundings taken at
the time of the bunkering would have revealed the defect with the alarms,
the evidence does not support that argument. In particular, soundings
were taken at the time of the bunkering. In addition, even the soundings
taken after the alarms were known to be dislodged, did not cause the crew
or Transport Canada to suspect that there was any oil missing;
18) had a process for sounding contained areas like the pipe passage. Since
the contained areas were just examined a few weeks earlier, the Captain
determined that it was not necessary to sound the pipe passage by the
time of the spill. Even after there was a suspicion that the Marathassa
had actually leaked oil, Transport Canada did not consider it necessary to
sound the pipe passage to look for missing oil, although Transport Canada
did direct that every single oil tank be sounded. It was reasonable for
the Marathassa to rely on the recent inspection of the contained areas to
not sound them prior to the incident;
19) had a process for watching for pollution during cargo washing exercises
which was followed on April 8, 2015; and
20) had a process for watching for pollution in general by the deck watch, as
recorded in the Official Log Book.
[272] Syncrude, supra, at para 99, quoting from Sault Ste Marie at p. 1331, noted that:
[99] To meet the onus, Syncrude is not required to show that it took all
possible or imaginable steps to avoid liability. It was not required to
achieve a standard of perfection or show superhuman efforts. It is the
existence of a “proper system” and all “reasonable steps to ensure the
effective operation of the system" that must be proved.
[273] In R. v. Leask, 2012 BCPC 423, the Court found that the master of a fishing boat
exercised due diligence by taking steps to instruct experienced crew to make sure that a
revival tank was operating as required by the terms of the fishing licence. The Court
noted that,
[72] A fishing boat is run by a team, especially with vessels of this size.
Reliance has got to be placed on members of the team to do the jobs to
which they are assigned. The situation is such that the skipper may be
the person who is ultimately responsible, but it may be, in certain
circumstances, unrealistic to expect that the skipper will be double
checking every order that is given to ensure compliance.
[274] In this case, the Marathassa was “double checking”, as it required the Captain
and Chief Engineer to supervise the crew, and the owner also supervised the crew
online every two hours. In addition, the crew was required to document all of its duties,
inspections and drills.
[275] In R. v. Pacifica Papers Inc., 2002 BCPC 265, the accused proved a due
diligence defence when a contractor moved a discharge hose against the express
instructions of the accused, which the Crown alleged resulted in the deposit of a
deleterious substance. The Court found that the Crown did not approve the actus reus
of the offence, but also found that the accused acted with due diligence by:
i. providing environmental awareness programs;
ii. taking reasonable steps to hire a reputable contractor; and
iii. having “no reasons to believe that his instructions would not be complied
with by [the contractor’s] employees."
[276] The Court further found that it was not reasonable to expect Pacifica to stay on
site to supervise the work.
[277] In R. v. Emil K. Fishing, 2008 BCCA 490, the accused had a fishing licence to
catch pink and chum salmon, but not sockeye or coho salmon. The accused owner of
the company and vessel testified that he had equipped the vessel with gear for
separating and releasing any bycatch. That gear met the industry standard and should
have prevented retention of the bycatch. The owner was out of the country during the
summer fishing season and hired an experienced skipper to operate the vessel. He had
employed the same skipper in three or four previous seasons without any difficulties.
The owner had directed the skipper to ensure that all fishing activities were in
compliance with the Fisheries Act and all other applicable laws, and he had no reason
to believe that the skipper would not follow those directions.
[278] Although the owner could not prove the mechanism by which the bycatch was
retained instead of segregated, the Court of Appeal upheld the trial court finding that the
accused had proven a defence of due diligence. In particular, the owner had proven
that they equipped the vessel with appropriate equipment to segregate the fish, had
hired a competent crew, and had instructed the crew to take care not to commit an
infraction. The Court of Appeal noted that whether a system amounts to “reasonable
precautions” will depend on the circumstances of the case and the impact of the
conduct.
[279] The Marathassa had a comprehensive safety management system in place that
far exceeded the industry standard. All crew members were tested, both internally and
externally, on their knowledge of the system and the ISM Manual. The crew was tested
both on land and while performing their duties onboard the vessel. Ongoing training
videos were viewed by the crew onboard the ship and all scheduled drills and
equipment inspections were performed by the crew as required by the ISM Manual,
under the supervision of the Captain and other officers. The results were reported to
the owner, who monitored the performance of duties and drills online every two hours.
[280] If the crew did not respond to alarms, perform the necessary soundings, conduct
pollution watches or ensure valves were closed, which is not the evidence, it was
reasonable for the Marathassa to believe that those duties were being performed given
the extensive training, external testing, ongoing education and frequent verification drills
required of the crew.
Conclusion on the Due Diligence Defense
[281] The fuel oil spill on April 8, 2015, related to a mistake of fact by the Marathassa
that the vessel was built to industry standards with no defects. That belief was honestly
and reasonably held. The defects in the high level alarms and the valve were not
foreseeable. All of the alarms were tested on a weekly basis and no concerns arose.
The alarms panel on the Bridge was tested every four hours without any concerns.
[282] The debris in the valve was not apparent to the naked eye and remained in the
valve even after the valve was hand and wrench tightened. It was not discovered by the
crew when they checked the valve on the night of April 8, by Transport Canada on April
9, or by the crew when they hand and wrench tightened the valve on April 9. It was only
discovered when the crew, with the knowledge of the path of the spill, disassembled the
valve.
[283] The Marathassa also took all reasonable steps to avoid the fuel oil spill on
April 8, 2015.
Failure to Follow the Ship Oil Pollution Plan (SOPEP)
[284] Lastly, the Marathassa is charged with failure to take reasonable measures to
implement its SOPEP by “failing to take immediate measures for the containment of the
discharged oil”, and by failing to take samples of the oil in the water.
[285] Section 188 of The Canada Shipping Act, 2001, states:
s. 188 If a vessel is required by the regulations to have a shipboard oil

pollution emergency plan, the vessel shall take reasonable measures to
implement the plan in respect of an oil pollution incident.
[286] The parties agree that the Marathassa was required to have a SOPEP that
consisted of various things, including “a detailed description of the action to be taken
immediately by persons on board to reduce or control the discharge of oil following the
incident.”
Failure to Assist with Containment
[287] Although the charge alleges that the Marathassa “failed to immediately take
emergency measures for the containment of the discharged oil”, that is not the
requirement of the SOPEP. Section 5.2.3 of the SOPEP requires that, “in the event of
an oil spill it is important to determine the nature of the oil, its source and to assist with
its containment, dispersion (if allowed) and clean-up”. The Crown argues that
the Marathassa failed to contact Western Canada Marine on April 8, to recover the oil in
the water.
[288] The expert evidence established that vessels like the Marathassa do not have
equipment on board to remove fuel oil from the water. They rely, as did
the Marathassa, on companies specializing in that type of recovery work.

The Marathassa had a contract in place with Western Canada Marine to contain and
recover any spilled oil. The exact time that the Marathassa contacted Western Canada
Marine on April 8, 2015, is not clear, but according to Mr. Davis with Western Canada
Marine, both the ship and the Coast Guard hired them to recover the fuel. They
attended at the Marathassa in the late evening of April 8, or early morning of
April 9, 2015. According to the Captain’s statement, he contacted the emergency
response team of his office and they contacted Western Canada Marine on the night of
April 8, 2015.
[289] Prior to the diver finding fuel oil in an overboard discharge pipe at approximately
6:00 pm on April 9, no evidence could be found on the ship that the fuel oil in the water
around the Marathassa had been discharged from the vessel. Even Inspector Waheed,
who firmly believed that the Marathassa had discharged the fuel oil and was on the
vessel for most of the day on April 9, searching for evidence, reported to his superior
late in the afternoon that no evidence of a spill from the Marathassa had been found.
The Captain also stated that prior to the diver finding fuel oil in the overboard discharge
pipe, he could not imagine that the spill came from the brand new ship.
[290] Mr. Davies testified that when there is no known source for a spill, the Coast
Guard retains Western Canada Marine. That occurred at approximately 7:30 pm on
April 8. At 11:55 pm, Port Vancouver issued a notice to the Marathassa stating that it
was responsible for the oil spill.
[291] Clearly, the Marathassa was not required to pay a company to recover spilled oil
that it did not suspect to be from its ship, as long as the belief was reasonably held, and
I have already found that it was reasonably held. Nevertheless, the Marathassa did
retain Western Canada Marine on the night of April 8, and Western Canada Marine
went out to the ship that night. There is no evidence that Western Canada Marine could
have started the containment process earlier, even though the Coast Guard contacted
them at 7:30 pm on April 8, 2015. When Western Canada Marine arrived at the vessel,
the Marathassa “assisted with” the containment by shining search lights on the area to
aid in the clean up.
[292] The Crown also argues that the Marathassa did not contact Transport Canada to
report the oil spill, as required. That argument does not seem to be related to the
specific charge of not assisting in the containment of the spilled oil. In any event,
Transport Canada notified the agent for the Marathassa of the oil spill, who then notified
the Marathassa. It would not make sense for the Marathassa to then turn around and
notify Transport Canada.
[293] The Crown also points to the evidence of Inspector Waheed that the Captain did
not know whether the Marathassa had a contract with Western Canada Marine. As I
have previously noted, I do not put a lot of weight on conversations related by Inspector
Waheed. In any event, the Captain immediately produced a contract with Western
Canada Marine. He also contacted the owner’s emergency response team, which then
contacted Western Canada Marine to begin the containment process.
[294] The efforts of the Marathassa on April 8, to find and stop the source of any oil
spill can also be categorized as “assisting with” containment, as the Marathassa was
assisting Port Vancouver to find and contain any ongoing discharge of oil.
[295] The Crown has not proven beyond a reasonable doubt that the Marathassa did
not take reasonable steps to assist with the containment of the spilled oil.
Failure to Take Samples in the Water
[296] Section 5.2.3 of the SOPEP requires that, “the 2nd Officer assisted by a seaman
and the 2nd Engineer (if necessary) will take oil samples during any spill incident or
whenever oil is in the water.” The section also provides that “samples should be
collected of all different grades of bunker/fuel on board and of the oil spilled.”
[297] The evidence that the Crown relies on to prove the charge is threefold. First, the
Rough Log Book did not contain any reference to samples being taken on April 8.
However, there was also no notation of samples taken of the oil in the water and
onboard the ship on the morning of April 9, by Mr. Beaton, who was retained by
the Marathassa. The Crown further notes that no mention of samples being taken were
included in the Incident Report dated April 8, 2015. Other activities that did occur were
also not included in the report. In fact, several portions which should have been filled in
were left blank, which is not surprising given that all efforts were being directed towards
finding the source of any oil discharge from the ship.
[298] Finally, the Crown notes that during his interview with Transport Canada, the
Captain described the actions he took on April 8, with respect to the oil in the water, and
he did not mention samples being taken. He also did not mention other activities that did
occur, such as recording in the Rough Log Book that oil was observed around the
vessel.
[299] Therefore, although the lack of notation in the Log Book, Incident Report, and by
the Captain of samples being taken on April 8, is some evidence that samples may not
have been taken, they are not conclusive because the documents and the Captain also
do not mention other activities that did occur. In addition, Captain Nelson testified for
the Crown that vessels have multiple log books, including an Engine Log Book. There
is no evidence that a notation was not made in another log book. The Crown has not
proven beyond a reasonable doubt that samples were not taken of the oil in the water
on April 8, 2015.
[300] If the samples were not taken on the night of April 8, 2015, they were definitely
taken on the morning of April 9, 2015. The SOPEP does not require that the samples
be taken immediately, and indicates that the purpose of taking the samples is for
evidence of the source of the oil and to preserve evidence if later there is an issue
regarding the source of the oil. There was no evidence of any testing lab onboard the
vessel or that a lab would be available to test the samples in the night. In fact,
Transport Canada had to wait until the following day to have the samples they took on
April 8, tested. At the same time, the crew was frantically searching for any source of
an oil leak, which was a priority under the SOPEP, which requires immediate action to
stop any discharge of oil. Therefore, even if the only samples were taken on the
morning of April 9, the Marathassa took reasonable measures to implement the SOPEP
with regard to the collection of oil samples.
[301] The Crown argues that because the samples were taken on April 9, by someone
hired by the Marathassa and not the 2nd Officer, that there was no compliance with the
requirements of the SOPEP. Mr. Beaton was clearly acting as an agent of
the Marathassa to perform the duties of the 2nd Officer.
not take reasonable measures to comply with its SOPEP requirements to assist with
containment and to take samples of the oil in the water.

[303] In addition, the Marathassa has proven a due diligence defence to those
charges. In particular, given the extensive training, verification and ongoing monitoring
of the crew, the Marathassa took all reasonable steps to ensure that the crew followed
the requirements of the SOPEP.
Conclusion
[304] The Crown has proven beyond a reasonable doubt that the Marathassa
discharged a pollutant into the waters of English Bay on April 8, 2015, contrary to
section 187 of the Canada Shipping Act, 2001, and that the Marathassa discharged a
substance on April 8, 2015, that is harmful to migratory birds. The Marathassa has
proven a due diligence defence to both charges.
not take reasonable measures to comply with its SOPEP requirements to assist with
containment of the oil spill and to take a sample of the oil in the water during a spill
incident. In addition, the Marathassa has proven a due diligence defence to those
charges.
[306] The Marathassa is acquitted of all charges.
_____________________________
The Honourable Judge K. Denhoff
Provincial Court of British Columbia

R V MV Marathassa - Reasons For Judgment

Uploaded by

Document Information

Original Title

Copyright

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

R V MV Marathassa - Reasons For Judgment

Uploaded by

Copyright:

Citation: ☼ R. v.

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

REASONS FOR JUDGMENT

Counsel for the Crown: J. Lawn and A. Switzer

Transport Canada conducted an investigation which determined that approximately

smeared with patches of oil.

[2] The Marathassa is charged with an environmental offence of discharging a

environmental offence of discharging a substance that was harmful to migratory birds.

the fuel oil.

was harmful to migratory birds.

shipbuilding or to two experienced Transport Canada Inspectors, who spent an entire

defence of due diligence.

[12] As a result, the Marathassa is acquitted of all charges.

Vancouver, where it was scheduled to pick up a cargo of grain for transportation

and Vancouver to Anchorage B in Vancouver Harbour. There is a compulsory pilotage

was on the vessel for over seven and a half hours.

Cascadia Terminal in Vancouver Harbour on April 6.

Terminal to Anchorage 12 in English Bay.

[18] On April 8, at approximately 4:30 pm, the captain of the Marathassa

the Marathassa was anchored.

The Discharge of Fuel Oil into English Bay

Crown relies upon is not sufficient to prove the offence.

The Legal Test for the Sufficiency of Circumstantial Evidence

asked to draw certain inferences from the evidence.

charge beyond a reasonable doubt. See R. v. Villaroman, [2016] 1000, 1 S.C.R.,

Evidence of the Marathassa Discharging Fuel Oil

i) Observations of Fuel Oil in English Bay

dispatched to English Bay at around 4:30 pm on April 8, 2015. He saw significant

see fuel oil all around the vessel.

which was the back left side of the vessel.

growing outside of the boom.

Surveillance Team with Environment Canada. They conducted aerial surveillance of

fuel oil around the Marathassa on the morning of April 9.

fully loaded with cargo.

back to a pipe passage compartment. That compartment is a confined space at the

ii) Statements of the Captain and the Chief Engineer

consent of the Marathassa at trial.

tanks as an additional pollution precaution. To install the alarms, a hole is created in

sensor will activate an alarm.

compartment cannot escape.

the cargo cleaning exercise.

the pollution of the water by fuel oil.

to one of the fuel tanks.

 Several people observed a ring of fuel oil around the hull of

April 8, flowing easterly towards the Marathassa.

concentration of fuel oil around it.

not any of the other vessels in the vicinity.

compartment or inside the defective valve, or in the overboard discharge pipe.

the Canada Shipping Act, 2001, provides that:

provides a defence of due diligence.

prevent the offending conduct.

exercised due diligence.

Crown. In addition, three expert witnesses testified as to industry standards and

shipping industry. In particular, practices regarding shipping management, including

procedures regarding building, delivery, crewing and overseeing operations of bulk

carriers engaged in international trade.

in the history of classification societies, and standards and procedures of classification

involvement during building, certification and delivery, and integrated management

system approval, implementation and compliance.

the training requirements of the engineering crew.

being a first crew and a replacement crew.

expertise. None of the experts were significantly challenged on cross-examination

of Inspector Waheed and Captain Yeung, whose testimony I extensively reviewed in my

Reasons dated April 20, 2018.

concessions on cross-examination. In those cases, their initial statements are made

less reliable by the clarifications and concessions.